Recent court rulings may have seriously undermined the case against North Carolina and other states that fail to comply with federal regulations for handling their hazardous waste.
A 1989 amendment to the Superfund program requires that states either certify they can handle their own wastes or arrange to share the responsibility through interstate agreements.But federal courts in Alabama, Indiana and South Carolina have said that the movements of hazardous waste are protected by the interstate commerce clause of the U.S. Constitution.
If companies can send their waste anywhere they want anyway, there seems to be no rationale for interstate waste pacts.
``Courts have ruled that while (the Superfund amendment) is a valid paper exercise, it has no validity in the marketplace,' said John B. Thomasian, staff director for national resources policy for the governors association.
After being ejected last month from such a five-state waste pact, North Carolina technically is out of line with the amendment.
Despite lobbying by officials in South Carolina, the U.S. Environmental Protection Agency has yet to respond with the law's only penalty: the withholding of Superfund money, which can cover most of the cost of waste cleanups.
So the federal law ``seems to have failed, in the short run at least,' said Phillip J. Kirk, president of N.C. Citizens for Business and Industry.
Under the amendment, the federal agency can withhold up to 90 percent of the cost of waste dump cleanups. That's the portion it provides when the responsible parties can't be made to foot a bill that averages about $25 million a site.
Other states, including Florida, Georgia and Mississippi, are like North Carolina in that they belong to no pact and export wastes to several states, he said.
North Carolina has been out of compliance with the amendment since Jan. 1, when it failed to meet a deadline for finding a site for a hazardous waste incinerator. The deadline was one of the terms of a waste pact with Alabama, Kentucky, Tennessee and South Carolina.
In early January, South Carolina Gov. Carroll Campbell Jr. asked President Bush and EPA Administrator William K. Reilly to stop the flow of Superfund money to North Carolina.
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