MURNAGHAN, Circuit Judge:
The case before us arises on appeal from a preliminary injunction granted to Hazardous Waste Treatment Council ("HWTC")
An amalgam of federal acts, federal regulations, state statutes, state regulations, and court opinions, all addressing the hazardous waste problem, comprise the background of the instant appeal. At the preliminary injunction stage, where the merits have not yet been addressed, we need only sketch the broad outlines that enable us to reach a decision. We first touch upon the federal programs that comprise the background to the appeal. We then explain the South Carolina legislation challenged in the appeal. As our colleagues on the Eleventh
A. Federal Laws and Regulations
Fifteen years ago, Congress passed the Resource Conservation and Recovery Act of 1976 ("RCRA"), as amended, 42 U.S.C. §§ 6901-92k. RCRA establishes a national program for hazardous waste management administered by the Environmental Protection Agency ("EPA"). RCRA encompasses most aspects of hazardous waste management, including identification of waste, standards for generators, transporters, and operators of treatment, storage, and disposal facilities, and procedures for permits. Section 3006(b) of RCRA allows a state to implement its own program "in lieu of the federal program." 42 U.S.C. § 6926(b). No aspect of RCRA is to be "construed to prohibit any State ... from imposing any requirements, including those for site selection, which are more stringent than those imposed by such regulations." 42 U.S.C. § 6929. A state's program, however, must be "equivalent to" and "consistent with" the federal program and must provide "adequate enforcement of compliance." 42 U.S.C. § 6926(b). Such a state program, authorized by EPA, "shall have the same force and effect" as action taken by EPA. 42 U.S.C. § 6926(d).
RCRA has been explained and implemented by numerous federal regulations. Of particular concern in the present case, is 40 C.F.R. § 271.4, which implements RCRA § 3006, 42 U.S.C. § 6926:
40 C.F.R. § 271.4.
RCRA attempts to address hazardous waste before it becomes a problem. Congress enacted other federal statutes to deal with the need to cleanup improperly or illegally disposed waste. In 1980, the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S. §§ 9601-75, created a fund — i.e., a "Superfund" — of federal money available for state cleanup efforts. Several years later, when it became apparent that local community actions were resulting in little construction or expansion of hazardous waste management facilities, Congress enacted amendments to CERCLA § 104(c), the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Pub.L. No. 99-499, 100 Stat. 1613. Of particular importance to the instant appeal, amendment § 104(k) which became CERCLA § 104(c)(9) provided:
42 U.S.C. § 9604(c)(9). Section 104(c)(9) has been construed to require each state to present a Capacity Assurance Plan ("CAP") to EPA.
EPA's Office of Solid Waste and Emergency Response ("OSWER") issued two directives explaining the CAPs. See OSWER Directive 9010.00a (Oct. 16, 1989) ("Agency Review of SARA Capacity Assurance Plans"); OSWER Directive 9010.00 (December 1988) ("Assurance of Hazardous Waste Capacity: Guidance to State Officials"). The directives emphasize that waste reduction is the preferred method of addressing hazardous waste problems. See OSWER Directive 9010.00a, at 1-2. However, the directives also explain that SARA was enacted to solve the "NIMBY" — "not in my backyard" — problems that arose because of political pressure and public opposition:
OSWER Directive 9010.00, at 2; see Nat'l Solid Wastes, 910 F.2d at 717. Thus, CERCLA § 104(c)(9) envisions the import and export of hazardous waste to avoid future Superfund cleanup sites along with the construction of new facilities.
As the directives note, "Planning for twenty years of waste generation is not a simple task, particularly when the states will not, in most cases, own the wastes or directly control their generation or disposition." OSWER Directive 9010.00, at 6. Consequently, CERCLA § 104(c)(9) conditions the receipt of Superfund remedial funds on a state's presentation of a CAP which "assures" twenty-year capacity for in-state generated waste either at in-state facilities or at out-of-state facilities pursuant to an interstate or regional agreement. At least on the materials available to us at the preliminary injunction stage, CERCLA § 104(c)(9) does not appear to contemplate that hazardous waste actually be disposed of according to the CAP. For example, the OSWER directives imply that, for the purposes of the CAP, a state's in-state capacity will be reduced by imported hazardous waste only to the extent that an interstate or regional agreement exists. Hence, it appears that even if fifty percent of South Carolina facilities' capacity actually is used to treat out-of-state waste, unless that percentage occurred pursuant to an interstate
Moreover, CERCLA § 104(c)(9) does not appear to fine a noncompliant state, does not prohibit private parties from importing or exporting hazardous waste in the absence of an interstate or regional agreement, does not establish equal distribution requirements for hazardous waste facilities among the states, and does not introduce percentage limits on in-state and out-of-state waste. The only penalty faced by a state that refuses to comply with CERCLA § 104(c)(9) is disqualification for Superfund money.
B. South Carolina's Legislation
In 1985, EPA gave South Carolina RCRA authorization to operate its program.
1) Act No. 196 of 1989, enacted June 14, 1989, requires that South Carolina hazardous waste treatment and disposal facilities give preference to in-state generators,
S.C.Code Ann. § 44-56-130(4); Act. No. 196 § 9.
Executive Order 89-17 is basically an earlier version of Act No. 196. It provides a mandatory preference for in-state generators and prohibits the acceptance of hazardous waste from out-of-state generators where such disposal is banned.
2) Act No. 590 requires that a permit be obtained before operating a hazardous waste facility. The act limits the amount of hazardous waste that may be disposed of by burial.
3) Executive Order 89-25, promulgated on July 6, 1989, requires in-state disposal facilities to reserve "54,000 tons per year of the statutory maximum of 135,000 tons per year for South Carolina generated waste" and to limit the waste from any one state to 35,000 tons, at the rate of 10,000 tons per quarter.
4) South Carolina Department of Health and Environmental Control ("DHEC") Regulation 61-99, effective January 12, 1990, requires "applicants for permits to establish or expand facilities for treatment, storage, or disposal of hazardous waste," Reg. 61-99(I)(B), to demonstrate "need." "Need" cannot include hazardous waste generated outside of South Carolina. Reg. 61-99(III)(C).
In response to an EPA request on July 6, 1989, South Carolina provided a South Carolina Attorney General Opinion that Executive Order 89-17 and Act No. 196 were "consistent" under 40 C.F.R. § 271.4(a). In reaching that decision, the Attorney General concluded that, because the statute appeared constitutional under Commerce Clause analysis, it was "consistent." The Attorney General, however, noted that the portion of Act No. 196 challenged here on appeal raised a "more difficult legal question" under Supreme Court jurisprudence. No response by EPA appears in the record.
Copies of some of the legislation, including Act No. 196 and the two executive orders, were also submitted to EPA on October 17, 1989 as part of South Carolina's effort to gain approval of its CAP under CERCLA § 104(c)(9). South Carolina also included a copy of a SARA Capacity Assurance Regional Agreement with Tennessee, Kentucky, and Alabama.
On June 28, 1990, HWTC filed suit against the State of South Carolina, its governor, and certain state agencies, for declaratory and preliminary and permanent injunctive relief. HWTC alleged that the statutes, orders, and regulations violated the Commerce Clause, the Privileges and Immunities Clause, the Supremacy Clause, and 42 U.S.C. § 1983. In addition, HWTC filed a motion for preliminary injunction. South Carolina moved for partial dismissal of all but the Commerce Clause claims and argued abstention as a basis for dismissal of the Commerce Clause claims with respect to Regulation 61-99.
On September 27, 1990, the district court heard the motions for preliminary injunction and partial dismissal based on affidavits and documentary materials. On December 18, 1990, the district court issued a temporary restraining order to stop South Carolina from prohibiting hazardous waste from North Carolina.
In this circuit, the criteria to be examined when confronting a motion for a preliminary injunction and the appellate review of a district court's grant of a preliminary injunction are well settled. A grant of preliminary injunction is "`discretionary with the district court and may not be set aside on appeal unless an abuse of discretion is shown.'" Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 358 (4th Cir.1991) (citation omitted). The Blackwelder standard governs the imposition of a preliminary injunction. See Blackwelder Furniture Co. v. Seilig Mfg. Co., Inc., 550 F.2d 189 (4th Cir.1977). Remembering that minimization of change in the status quo and not decision on the merits of the controversy is the objective, a court considers four factors:
L.J. By and Through Darr v. Massinga, 838 F.2d 118, 120 (4th Cir.1988), cert. denied, 488 U.S. 1018, 109 S.Ct. 816, 102 L.Ed.2d 805 (1989). If the balance of the first two factors "`tips decidedly' in favor of the plaintiff," Rum Creek Coal, 926 F.2d at 359 (citation omitted), and "`the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair ground for litigation and thus for more deliberate investigation,'" id. (quoting Blackwelder, 550 F.2d at 195), the court shall grant a preliminary injunction.
Some confusion appears as to the scope of the preliminary injunction granted in the instant case. South Carolina claims that the district court's preliminary injunction covered provisions not even arguably unconstitutional under the Commerce Clause. In addition, the state contends that the district court erroneously declared the legislation "invalid." With respect to the latter contention, the district court's memorandum opinion makes clear that it did not intend to declare "invalid" the challenged legislation. The use of the word "invalid" appears to have been a technical mistake and the district court should modify the order by striking the words "which this Court declares are invalid." Order (Jan. 11, 1991), at 2.
We agree with South Carolina that the district court should limit the preliminary injunction to those aspects of the challenged legislation that present Commerce Clause questions. Once again, we believe that the district court's intent was to enjoin only those aspects specifically addressed in the court's memorandum opinion. Specifically, the preliminary injunction properly extends to provisions relating to preference for in-state waste, prohibitions, limits, or other restrictions on the acceptance of certain out-of-state waste, and permitting restrictions referring to out-of-state waste or limiting need to in-state waste.
More troubling, however, is the district court's analysis of Regulation 61-99. Only one sentence was devoted to harm caused by Regulation 61-99: "[t]he in state need requirement contained in the permit regulation also has injured the business interests of plaintiff's South Carolina members." "The rationale behind a grant of a preliminary injunction has been explained as preserving the status quo so that a court can render a meaningful decision after a trial on the merits." Rum Creek Coal, 926 F.2d at 359. If Regulation 61-99 is not enjoined, the district court's analysis does not make clear whether or not HWTC will suffer irreparable harm. Even if Regulation 61-99 turns out to be unconstitutional, any particular member who seeks a permit during the pending litigation may be able to obtain it under the current requirements if, for example, in-state need exists. However, if Regulation 61-99 turns out to be constitutional, South Carolina may be stuck with an unnecessary facility that obtained a permit during the pendency of the litigation. On the other hand, if litigation were to take so long that the absence of a new facility to handle waste, including out-of-state waste, would create irreparable harm, not only to HWTC but to the public, because of the possible creation of additional untreated waste, then the balance might tip the other way on a reapplication for temporary injunctive relief. Thus, although as we note below, HWTC appears to have a substantial argument that Regulation 61-99 is unconstitutional, we cannot uphold the temporary injunction as it relates to Regulation 61-99 in the absence of evidence that the district court engaged in a specific test of the balance of the hardships. We remand to permit the district court to consider the hardships.
South Carolina, arguing for disposition in its favor, has asserted that RCRA and CERCLA § 104(c)(9) embody a congressional exercise of the commerce power rendering irrelevant dormant Commerce Clause analysis. The state claims that Congress specifically left states free to regulate hazardous waste subject to EPA oversight. Thus, South Carolina contends that EPA's regulation implementing RCRA § 3006 establishes the only standard applicable to the case: whether or not the statutes, orders, and regulation act otherwise as an unreasonable restriction, impediment, or ban on interstate movement of hazardous waste. South Carolina contends that its legislation is reasonable because CERCLA § 104(c)(9)(A) requires that the state provide assurance that it has capacity, either in-state or through regional or interstate agreements, to treat or dispose of all hazardous waste generated in the state for the next twenty years and it can only do so by reserving some capacity for in-state waste. However, that approach's application here is by no means crystal clear.
HWTC argues that the statutes, orders, and regulation violate the Commerce Clause. HWTC contends that Congress' enactment of legislation concerning hazardous waste did not authorize states to engage in actions that would, in the absence of such legislation, burden interstate commerce.
The Commerce Clause
Congress, of course, may permit the states to engage in practices otherwise unconstitutional under the Commerce Clause. Maine, 477 U.S. at 138, 106 S.Ct. at 2447. Parties seeking to argue that Congress has authorized the otherwise invalid legislation face a heavy burden. The Supreme Court has held that before a federal statute will be so interpreted, "[a]n unambiguous indication of congressional intent is required," Maine, 477 U.S. at 139, 106 S.Ct. at 2447, congressional direction must be "unmistakably clear," South-Central Timber Development, Inc. v. Wunnicke, 467 U.S. 82, 91, 104 S.Ct. 2237, 2442, 81 L.Ed.2d 71 (1984) or "a clear expression of approval by Congress" must be shown. Id. at 92, 104 S.Ct. at 2243. That requirement is not idly commanded. Without the requirement, "`the risk that unrepresented interests will be adversely affected by restraints on commerce'" "unacceptably increases." Maine, 477 U.S. at 139, 106 S.Ct. at 2448 (quoting South-Central Timber, 467 U.S. at 92, 104 S.Ct. at 2243). Nor may we idly disregard it. "[W]hen Congress has not `expressly stated its intent and policy' to sustain state legislation from attack under the Commerce Clause, we have no authority to rewrite its legislation based on mere speculation as to what Congress `probably had in mind.'" New England Power Co. v. New Hampshire, 455 U.S. 331, 343, 102 S.Ct. 1096, 1102-03, 71 L.Ed.2d 188 (1982) (citations omitted); see South-Central Timber, 467 U.S. at 92, 104 S.Ct. at 2242.
We first consider whether, in the absence of congressional action, the challenged parts of executive orders and statutes may violate the Commerce Clause. The argument, at the early preliminary injunction stage at least, that they do so is by no means devoid of merit. They appear facially to discriminate against out-of-state hazardous waste.
South Carolina has not banned all out-of-state waste but, on full development on the merits, that may prove to be of little relevance. See Great Atl. & Pac. Tea Co. v. Cottrell, 424 U.S. 366, 375, 96 S.Ct. 923, 929, 47 L.Ed.2d 55 (1976); Nat'l Solid Wastes, 910 F.2d at 720. South Carolina appears to have attempted "to isolate itself from a problem common to many by erecting a barrier against the movement of interstate trade."
Act No. 196 bears a marked resemblance to an Alabama statute recently struck down by the Eleventh Circuit as violative of the Commerce Clause. The Alabama statute barred the acceptance of waste from states that either prohibited in-state disposal or treatment of the waste or had not signed an interstate or regional agreement to which Alabama was a party. Nat'l Solid Wastes Management v. Alabama Dep't of Env't., 910 F.2d 713, 717 (11th Cir.1990), as modified upon denial of reh'g, 924 F.2d 1001 (11th Cir.1991), cert. denied, ___ U.S. ___, 111 S.Ct. 2800, 115 L.Ed.2d 973 (1991). South Carolina's statute does not require that South Carolina be a signatory to the required interstate or regional agreement; however, it appears doubtful that the distinction, after full factual development, will prove significant. The Supreme Court has refused to vary "the strength of the bar against economic protectionism according to the size and number of in-state and out-of-state firms affected...." New Energy Co., 486 U.S. at 276, 108 S.Ct. at 1809.
The rationales advanced for South Carolina's Act No. 196 seem insufficient, if the question were addressed at the preliminary injunction stage, to save it. Unlike many states that have attempted to pass reciprocity provisions, because South Carolina will permit the acceptance of out-of-state waste without regard to South Carolina's actual approval as signatory, Act No. 196 does not seem driven by concerns over other states' inferior standards that may jeopardize South Carolina's citizens' health. See, e.g., Great Atl. & Pac. Tea, 424 U.S. at 366, 96 S.Ct. at 925; Dean Milk Co. v. Madison, 340 U.S. 349, 71 S.Ct. 295, 95 L.Ed. 329 (1951) (finding reciprocity provisions unconstitutional despite assertion of health standard rationale). South Carolina also may be unable to present more convincing support for the sort of conservation and preservation argument ultimately found unconstitutional in Sporhase v. Nebraska, 458 U.S. 941, 102 S.Ct. 3456, 73 L.Ed.2d 1254 (1982). South Carolina's Act No. 196 seems to punish certain hazardous waste generators merely because they reside in states that South Carolina concludes have not fulfilled obligations under CERCLA § 104(c)(9). But South Carolina does not appear to have been empowered to place penalties on businesses in such states. See Great Atl. & Pac. Tea, 424 U.S. at 380, 96 S.Ct. at 932 ("Mississippi is not privileged under the Commerce Clause to force its own judgments as to an adequate level of milk sanitation on Louisiana at the pain of an absolute ban on the interstate flow of commerce in milk."). And it seems unlikely that South Carolina can penalize its own
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. "[T]here is no basis to distinguish out-of-state waste from domestic waste." City of Philadelphia, 437 U.S. at 629, 98 S.Ct. at 2538. South Carolina argues that it should be able to preserve its in-state capacity. The burden, however, "of conserving the State's remaining landfill space" should not fall disproportionately on out-ofstate interests. Id. at 628, 98 S.Ct. at 2537. South Carolina has little inherent right to use capacity located within its borders solely for waste generated within its borders. See New England Power, 455 U.S. at 338, 102 S.Ct. at 1100 ("Our cases consistently have held that the Commerce Clause ... precludes a state from mandating that its residents be given a preferred right of access, over out-of-state customers, to natural resources located within its borders or to the products derived therefrom."); City of Philadelphia, 437 U.S. at 627, 98 S.Ct. at 2537 ("a State may not accord its own inhabitants a preferred right of access over consumers in other States to natural resources located within its borders"). South Carolina may preserve the capacity by limiting total disposal and treatment within the state without reference to whether in-state or out-of-state waste is actually involved.
Perhaps most importantly, the effect of every state designing particular limits and bars for out-of-state waste could be catastrophic. See Healy, 491 U.S. at 339-40, 109 S.Ct. at 2500-01. Indeed, such treatment of hazardous waste — in essence, ensured nontreatment of some hazardous waste — might destroy not only the theoretical principle of a national economic union, but contains the real potential to destroy land, if not also persons, within the union. Unless and until Congress alters the law, the apparent congressional intent of RCRA and SARA would seem to remain — better that hazardous waste be treated and disposed of somewhere, even if spread disproportionately among the states, than that future Superfund sites arise.
The challenged aspects of the executive orders and statutes, standing alone, may almost certainly prove to violate the Commerce Clause; however, South Carolina argues that either RCRA or CERCLA § 104(c)(9) authorize the otherwise invalid legislation. At the preliminary injunction stage, RCRA and CERCLA § 104(c)(9), however, do not appear to contain any language that indicates an unmistakably clear congressional intent to permit states to burden interstate commerce. South-Central Timber, 467 U.S. at 91-92, 104 S.Ct. at 2242-43; Nat'l Solid Wastes, 910 F.2d at 721-22. Moreover, South Carolina has not as yet presented evidence from the legislative history of the two statutes that demonstrate such congressional intent.
Lacking such support, South Carolina argues that the EPA's explanation of 40 C.F.R. § 271.4 is persuasive on this point. We are by no means prepared to accept that theory at the preliminary injunction stage as persuasive, nevermind, dispositive. EPA may deserve deference in its construction of its own regulations but it does not necessarily deserve deference with respect to whether Congress authorized it to permit states to violate the Commerce Clause.
Furthermore, EPA's published position on § 271.4 does not suggest a contrary conclusion. After City of Philadelphia was decided, EPA adopted § 271.4 on May 19, 1980. The EPA explained the theory behind the section:
45 Fed.Reg. 53395 (1980). Thus, EPA's initial explanation of § 271.4 indicated that it intended to use the "consistency" prong of RCRA to refuse to authorize a state program if any aspect of it might prove unconstitutional under the Commerce Clause. Moreover, the initial statement implied that EPA intended to extend the reasoning underlying City of Philadelphia to in-state construction bans. Even if courts were to find such bans constitutional, EPA may have hoped to claim the authority to refuse to authorize programs containing them.
South Carolina notably glosses over the initial statement and relies heavily on
Yet, in its later statement no longer does EPA seem to suggest that it will refuse to authorize programs containing laws or other elements that might be declared unconstitutional. Instead, EPA appears to have decided that not all restrictions would violate City of Philadelphia's virtually per se rule of invalidity. EPA claimed,
50 Fed.Reg. 46439 (1985). We are still unsure, however, of whether EPA was attempting to state (1) that some disparities might be constitutional, (2) that even if the disparities would be unconstitutional, EPA could approve the programs as "consistent," or (3) that EPA had the authority to permit otherwise unconstitutional state actions.
We need not struggle to resolve the import of the ambiguous second statement for the Constitution, RCRA, and the dictates of the Supreme Court sufficiently answer our problem. States may not engage in economic protectionism and RCRA appears to contain no clear statement or indication of legislative intent to permit states to override the Constitution. EPA may change its interpretation of its own regulation; however, we cannot change the commands of the Constitution and Congress. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 2781-82 n. 9, 81 L.Ed.2d 694 (1983).
CERCLA § 104(c)(9) also does not appear to contain a clear authorization either in the statute itself or its legislative history. South Carolina argues that § 104(c)(9) authorizes it to guarantee in-state capacity. But § 104(c)(9) contains no such provision. Section 104(c)(9) requires an "assurance" of twenty-year availability of arranged adequate
RCRA and CERCLA § 104(c)(9) do not appear to evince congressional intent to redefine the Commerce Clause. Long have we held that the Constitution "was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division." Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 523, 55 S.Ct. 497, 500, 79 L.Ed. 1032 (1935); see Healy, 491 U.S. at 336 n. 12, 109 S.Ct. at 2499 n. 12. The acknowledged problems of hazardous waste do not compel us at the preliminary injunction stage to abandon this vision.
We have dealt at some length with the questions the parties, especially South Carolina, have to face when they proceed to a decision on the merits. We do not decide them but merely address the Blackwelder factors. We conclude that likelihood of irreparable harm to the plaintiff will be measurably greater if the preliminary injunction (as modified) is denied. Facts yet to be raised may differently invoke the controlling doctrine. See Rum Creek Coal, 926 F.2d at 367. "`We hold only that the questions of fact and law raised on the record at this point are, under controlling doctrine, sufficiently serious and grave ones that, when considered with the balance of potential harms, the district court's injunctive order should stand pending trial.'" Id. (citation omitted). Accordingly, we remand in part to allow the district judge (1) to modify the order by striking the words that confusingly imply a declaration of invalidity, (2) to modify the order to apply only to the specific portions of the executive orders and statutes challenged as violating the Commerce Clause, and (3) to consider explicitly the balance of hardships with respect to Regulation 61-99. We affirm the remainder of the opinion.
AFFIRMED IN PART; REMANDED IN PART.
Both South Carolina and HWTC allegedly have petitioned the EPA to withdraw North Carolina's RCRA authority and eligibility for Superfund money. HWTC apparently petitioned the EPA for withdrawal because of a North Carolina statute, S.B. 114, which was alleged to preclude construction of certain hazardous waste facilities. The EPA, however, denied the request. The District of Columbia Court of Appeals is currently considering HWTC's appeal from the EPA's denial (No. 90-1443).
The district court should modify accordingly the preliminary injunction, thus limiting it. We do not believe that the parties are in disagreement on this issue. If disagreement arises over our exclusion of any particular provision, the district court should address it in a manner consistent with our opinion.
Because, as discussed below, we remand the preliminary injunction inquiry with respect to Regulation 61-99, we do not consider here the necessary scope of any possible eventual preliminary injunction of it.
Similarly, abstention under Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), was not appropriate. Although Regulation 61-99 is part of a complex state regulatory scheme, determining the constitutionality of Regulation 61-99 does not present "`difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case....'" New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 361, 109 S.Ct. 2506, 2514, 105 L.Ed.2d 298 (1989) ("NOPSI") (citation omitted). Nor will "`the exercise of federal review of the question ... be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.'" Id.; see Gordon, 887 F.2d at 497 n. 2.
Abstention under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), applies predominantly to cases involving state criminal proceedings. See Cinema Blue of Charlotte, Inc. v. Gilchrist, 887 F.2d 49 (4th Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 1479, 108 L.Ed.2d 616 (1990); Gordon, 887 F.2d at 497 n. 2. Younger abstention may be proper in rare cases involving other state proceedings; however, none of the factors suggested in NOPSI, 491 U.S. at 364-73, 109 S.Ct. at 2515-20, exist here. Exceptional circumstances commanding abstention not being present, the district judge properly refused to abdicate federal jurisdiction over the constitutional questions. See NOPSI, 491 U.S. at 358, 109 S.Ct. at 2512.
Because the executive orders and statutes do not regulate evenhandedly but discriminate on their face against out-of-state hazardous waste, the analysis used in Pike does not apply. See Healy, 491 U.S. at 337 n. 14, 109 S.Ct. at 2499 n. 14. J. Filiberto Sanitation, Inc. v. State of N.J. Dep't of Envtl. Protection, 857 F.2d 913 (3d Cir. 1988), cited by South Carolina, applied the Pike test to a county plan where the plaintiff failed to show that the plan was protectionist placing the burden on out-of-state interests. Id. at 919-22.