18 ELR 20831 -- Potomac Electric Power Co. v. Sachs

Potomac Electric Power Co. v. Sachs

Nos. 86-1572, -1573 (841 F.2d 90, 27 ERC 1318) (4th Cir. March 7, 1988)

On remand from the Supreme Court with instructions to consider the issue of mootness, the court holds that an electric power company's action for declaratory judgment that the Toxic Substances Control Act preempts Maryland hazardous waste statutes is rendered moot by Maryland's suspension of its criminal investigation against the company.

[Previous opinions in this case are published at 16 ELR 20651 and 17 ELR 20153.]

Counsel for Appellant/Cross-Appellee
Arnold M. Weiner
Melnicove, Kaufman, Weiner & Smouse
Charles Ctr. S., 36 S. Charles St., Baltimore MD 21201-3060
(301) 332-8500
E. Barrett Prettyman Jr.
Hogan & Hartson
Columbia Square, 555 13th St. NW, Washington DC 20004-1109
(202) 637-5600

Counsel for Appellees/Cross-Appellants
Ralph S. Tyler, Ass't Attorney General
Dep't of Law, 7 N. Calvert St., Baltimore MD 21202
(301) 576-6300

Before PHILLIPS, SPROUSE and CHAPMAN, Circuit Judges.

[18 ELR 20831]

SPROUSE, Circuit Judge:

On January 19, 1988, the Supreme Court, U.S. , 108 S.Ct. 743, 98 L.Ed.2d 756 granted the Potomac Electric Power Company's (PEPCO) petition for certiorari in this cause, vacated our earlier judgment, Potomac Electric Power Co. v. Sachs, 802 F.2d 1527 (4th Cir.1986), and remanded "for further consideration in light of Deakins v. Monaghan, U.S. , 108 S.Ct. 523, 98 L.Ed.2d 529 (1988)[, and to consider the question of mootness." Both parties have since filed supplemental memoranda with this court agreeing that the case is moot. We have reviewed the parties' contentions in light of subsequent developments in the case, and now agree with their position that there is no longer a controversy.

After the State of Maryland initiated grand jury proceedings to investigate [18 ELR 20832] whether PEPCO had violated Maryland's criminal laws and regulations governing hazardous waste disposal, PEPCO commenced the instant action in federal court seeking a declaratory judgment that the involved state laws were preempted by the Toxic Substances Control Act, 15 U.S.C. § 2601, et seq. The district court determined that TSCA does not preempt the challenged state laws. We reversed concluding that the court should have abstained from deciding the issue under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) and its progeny. Sachs, 802 F.2d 1527 (4th Cir.1986). While PEPCO's petition for certiorari to the Supreme Court was pending, the State informed the Court that it had suspended its criminal investigation of PEPCO and, therefore, no remaining case or controversy existed between the parties. PEPCO subsequently concurred in the State's position.

In light of the parties' agreement and the absence of an enforcement action against PEPCO, we now agree that the case has become moot. Therefore, in accordance with the Supreme Court's instructions, we remand the case to the district court with directions to dismiss the cause as moot. See United States v. Munsingwear, 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950).

SO ORDERED.