U.S. v. Commonwealth of Kentucky

Full title: UNITED STATES OF AMERICA PLAINTIFF, v. COMMONWEALTH OF KENTUCKY, ET AL…

Court: United States District Court, W.D. Kentucky

Date published: Dec 17, 1999

CIVIL CASE NO. 5:99CV-87-R (W.D. Ky. Dec. 17, 1999)

Opinion

CIVIL CASE NO. 5:99CV-87-R

December 17, 1999

MEMORANDUM OPINION AND ORDER

THOMAS RUSSELL, District Judge

Upon Defendants' Motion to Reconsider and the Court being fully advised, IT IS ORDERED THAT Defendants5 Motion to Reconsider is DENIED and the case is DISMISSED.

DISCUSSION

In reviewing Defendants' Motion to Reconsider and Plaintiff's response, the Court concludes that no new legal issues have been raised and denies Defendants' Motion to Reconsider.

Despite this holding, the Court will take this opportunity to insure that portions of that opinion are clear. Defendants argue that their regulations regulate only the solid waste portion of the mixture and have a mere incidental impact on the source, special nuclear and byproduct material portion.¹ This Court disagrees. Semantical arguments hold little weight. Whether terming its regulation as direct, indirect or incidental, Defendants cannot effect regulations that result in the regulation of the source, special nuclear and byproduct material portion of a solid waste mixture. The inseparable nature of waste mixtures does not effect this result. See Director, Waste Manag. Div, Reg. V, U.S. Envil Protection Agency v. Westinghouse Materials Co. of Ohio, Inc., 1991 WL 303402 (E.P.A. Dec, 31, 1991) (rejecting the argument that the inseparable nature of waste eliminates the ability for dual regulation of waste mixtures). Inasmuch as the regulations effect any type of regulation on the source, special nuclear and byproduct material, the regulation is improper and preempted by the Atomic Energy Act.

1 The Court clarifies that its decision applies to the mixture at issue whether it be a solid/nuclear waste mix or a hazardous/solid waste mix.

Defendants argue that the Court improperly converted a defendant's motion to dismiss into a plaintiff's motion for summary judgment. Prior to its decision, the Court informed both parties that the decision would address preemption and that it was the Court's position that a ruling on preemption would effectively end the case in a dismissal in favor of one party. The parties agreed with this approach and articulated the position that a legal determination of preemption would terminate the case. Furthermore, a district court has the authority to enter summary judgment sua sponte as long as the party against whom judgment is entered has a reasonable opportunity to present any relevant evidence. See Salehpour v. Univ. of Tennessee, 159 F.3d 199, 203-04 (6th Cir. 1998). Based on the discussion with the parties and the parties1 thorough and articulate briefs, the Court believes it provided this opportunity.

The Memorandum Opinion and Order (Doc. # 12-13) sufficiently addresses all issues raised by the parties. The case is DISMISSED.

This is the 17 day of December, 1999. This is a final and appealable order.