Also known as: toxic waste · toxic-waste · hazardous waste
Written by attorneys — see sources below.
Waste materials whose interstate disposal is subject to state fees or surcharges that discriminate on the basis of origin and thereby violate the Dormant Commerce Clause.
Triumph Manufacturing ships toxic wastes from its out-of-state plant to a disposal facility in State A. State A charges the company a surcharge double the rate imposed on in-state generators for identical waste. The company challenges the fee as unconstitutional. The surcharge is struck down because it discriminates against interstate commerce on the basis of waste origin.
Threshold Capital owns land used for coal extraction that generates toxic wastes. A new state subsidence-control statute prevents mining methods that risk waste migration into groundwater. The company claims the regulation constitutes a taking. The court rejects the claim because the regulation prevents a public nuisance equivalent to toxic contamination.
Beginning well over 100 years ago, landowners in western Pennsylvania began severing title to underground coal and the right of surface support while retaining or conveying away ownership of the surface estate. Approximately 90 percent of the coal that petitioners mine or will mine was severed from the surface in the period between 1890 and 1920. When acquiring or retaining the mineral estate, petitioners or their predecessors typically acquired the right to deposit wastes, provide drainage and ventilation, erect surface facilities, and obtained waivers of claims for damages resulting from coal removal. In 1966 the Pennsylvania Legislature enacted the Bituminous Mine Subsidence and Land Conservation Act after concluding that existing subsidence legislation had failed to protect public safety, land conservation, municipal tax bases, and land development. Section 4 of the Act prohibits mining that causes subsidence damage to public buildings and noncommercial buildings used by the public, dwellings used for human habitation, and cemeteries that were in place on April 17, 1966. The Department of Environmental Resources applies a formula that generally requires 50 percent of the coal beneath protected structures to remain in place. Section 6 authorizes the Department to revoke a mining permit if removal of coal causes damage to a protected structure and the operator has not repaired the damage, satisfied any claim, or deposited security equal to the reasonable cost of repair within six months. Petitioners are an association of coal mine operators and four corporations engaged in underground mining of bituminous coal in western Pennsylvania. Their members and the corporate petitioners own, lease, or control substantial coal reserves and support estates beneath surface property affected by the Act. In 1982, petitioners filed a civil rights action in the United States District Court for the Western District of Pennsylvania seeking to enjoin officials of the DER from enforcing the Subsidence Act and its implementing regulations. The parties entered a stipulation of facts on the facial challenge and filed cross-motions for summary judgment. The District Court granted respondents' motion in 1984. The Court of Appeals affirmed in 1985. The Supreme Court granted certiorari in 1986. Stipulations established that enforcement of the 50 percent rule would require petitioners to leave approximately 27 million tons of coal in place across 13 mines containing over 1.46 billion tons total. This amount represents less than 2 percent of the coal in those mines. Petitioners did not claim that any specific mine had become unprofitable since the Act's passage.
View caseTalon Security holds property containing buried toxic wastes from prior industrial activity. The state condemns the land to create a secure containment facility serving multiple counties. The owner argues the taking lacks public use. The condemnation is upheld because the project addresses a broad public health threat from the wastes.
In 1966 the Pennsylvania Legislature enacted the Bituminous Mine Subsidence and Land Conservation Act to address land subsidence caused by underground coal mining. The Act authorizes the Department of Environmental Resources to implement and enforce a comprehensive program preventing or minimizing subsidence and consequent damage to surface structures. Section 4 prohibits mining that causes subsidence damage to public buildings, dwellings used for human habitation, and cemeteries, and generally requires that 50 percent of the coal beneath such structures remain in place to provide surface support. Petitioners are an association of coal producers and several of its member corporations engaged in underground bituminous coal mining in western Pennsylvania. They own, lease, or control substantial coal reserves and associated support estates beneath surface properties affected by the Subsidence Act. Many of these interests were severed from the surface estate between 1890 and 1920, and petitioners or their predecessors typically acquired waivers of liability for subsidence damage along with rights to deposit wastes, provide drainage and ventilation, and erect surface facilities. In 1982 petitioners filed a civil rights action in the United States District Court for the Western District of Pennsylvania against the Secretary of the Department of Environmental Resources and other officials. They sought to enjoin enforcement of the Subsidence Act and its implementing regulations, alleging that Section 4 and Section 6 effected a taking of their property without compensation and that Section 6 impaired their contractual obligations. The parties entered a stipulation of facts concerning the facial challenge and filed cross-motions for summary judgment. The District Court granted summary judgment in favor of the Department officials. The Court of Appeals for the Third Circuit affirmed. The Supreme Court granted certiorari to consider the constitutional challenges to the Subsidence Act. Petitioners have never claimed that the Subsidence Act makes it commercially impracticable for them to continue mining their bituminous coal interests in western Pennsylvania, nor have they identified any specific mine rendered unprofitable by the statute. The evidence in the record shows that enforcement of the 50 percent rule has required petitioners to leave less than 27 million tons of coal in place. This applies across 13 mines containing over 1.46 billion tons. It amounts to less than 2 percent of the total coal in those operations.
View caseTorchlight Media owns a former printing plant site laced with toxic wastes. The city condemns the parcel to transfer it to an auto manufacturer that will remediate the contamination as part of a redevelopment plan. The owner objects that the transfer serves only private interests. The taking is sustained because the project eliminates a public nuisance and creates jobs.
This case arises out of a plan by the Detroit Economic Development Corporation to acquire, by condemnation if necessary, a large tract of land to be conveyed to General Motors Corporation as a site for construction of an assembly plant. The plaintiffs, a neighborhood association and several individual residents of the affected area, brought suit in Wayne Circuit Court to challenge the project on several grounds. In the spring of 1980, General Motors informed the City of Detroit that it would close its Cadillac and Fisher Body plants located within the city in 1983. General Motors offered to build an assembly complex in the city if a suitable site could be found meeting four criteria: an area of between 450 and 500 acres, a rectangular shape, access to a long-haul railroad line, and access to the freeway system. The city evaluated nine potential sites and selected a parcel of approximately 465 acres straddling the Detroit-Hamtramck border known as Central Industrial Park. In July 1980 the Detroit Common Council approved the boundaries of the project. On September 30, 1980, the completed project plan was approved by the Detroit Economic Development Corporation. On October 31, 1980, the Common Council passed a resolution approving the project plan with minor modifications and declaring that the project constituted a public purpose. General Motors required that title to the entire site and the rail marshalling yard must be vested in the City of Detroit by May 1, 1981. The projected public cost of preparing a site agreeable to the board of directors of General Motors is over $200 million. The site was to be sold to General Motors for little more than $8 million. The trial court conducted a ten-day trial on defendants’ motion to dismiss from November 17 to December 2, 1980, limited to the question whether the city abused its discretion in determining that condemnation of plaintiffs’ property was necessary under 1980 PA 87. On December 9, 1980, the court entered judgment for defendants and dismissed the complaint. Plaintiffs filed a claim of appeal with the Court of Appeals on December 12, 1980, and an application for bypass with the Michigan Supreme Court on December 15, 1980, which the Court granted along with a motion for immediate consideration.
View caseNo. Such a fee is presumptively invalid because it discriminates on the basis of origin. The primary authority establishes that origin-based cost differentials on waste disposal, including hazardous waste, violate the clause.
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CERCLA imposes strict liability for cleanup costs on owners and operators when hazardous substances are released. Defenses are narrow and lender liability receives special treatment under the statute.
A regulation that prevents nuisance-like harm from toxic wastes is generally not a taking. The police power supports restrictions that protect public health without requiring compensation.
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