Safety Kleen Inc v. State of SC

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

SAFETY-KLEEN, INCORPORATED 
(PINEWOOD),
Plaintiff-Appellant,
and
TORONTO DOMINION (TEXAS),
INCORPORATED, As agent and advisor
for secured creditors; TD SECURITIES
(USA), INCORPORATED, As agent and
advisor for secured creditors,
Intervenors/Plaintiffs,
and
OFFICIAL COMMITTEE OF UNSECURED
CREDITORS OF SAFETY KLEEN
CORPORATION,
Amicus Curiae,  No. 00-2170

v.
BRADFORD W. WYCHE, Chairman,
South Carolina Board of Health and
Environmental Control, in his
official capacity; SOUTH CAROLINA
BOARD OF HEALTH AND
ENVIRONMENTAL CONTROL; DOUGLAS
E. BRYANT, Commissioner, South
Carolina Department of Health and
Environmental Control, in his
official capacity; SOUTH CAROLINA
DEPARTMENT OF HEALTH AND
ENVIRONMENTAL CONTROL,
Defendants-Appellees,

2 SAFETY-KLEEN, INC. v. WYCHE

SIERRA CLUB; PHIL P. LEVENTIS; 
CITIZENS ASKING FOR A SAFE
ENVIRONMENT, INCORPORATED
(CASE); SOUTH CAROLINA
DEPARTMENT OF NATURAL
RESOURCES; SOUTH CAROLINA PUBLIC
SERVICE AUTHORITY,
Intervenors/Defendants-Appellees, 
and
STATE OF SOUTH CAROLINA,
Defendant.
UNITED STATES OF AMERICA,
Amicus Curiae.

SAFETY-KLEEN, INCORPORATED 
(PINEWOOD),
Plaintiff-Appellee,
TORONTO DOMINION (TEXAS),
INCORPORATED, As agent and advisor
for secured creditors; TD SECURITIES
(USA), INCORPORATED, As agent and
advisor for secured creditors,
Intervenors/Plaintiffs-Appellees,  No. 00-2179

and
OFFICIAL COMMITTEE OF UNSECURED
CREDITORS OF SAFETY KLEEN
CORPORATION,
Amicus Curiae,
v.

 SAFETY-KLEEN, INC. v. WYCHE 3

BRADFORD W. WYCHE, Chairman, 
South Carolina Board of Health and
Environmental Control, in his
official capacity; SOUTH CAROLINA
BOARD OF HEALTH AND
ENVIRONMENTAL CONTROL; DOUGLAS
E. BRYANT, Commissioner, South
Carolina Department of Health and
Environmental Control, in his
official capacity; SOUTH CAROLINA
DEPARTMENT OF HEALTH AND
ENVIRONMENTAL CONTROL,
Defendants-Appellants,
and
STATE OF SOUTH CAROLINA,

Defendant,
and
SIERRA CLUB; PHIL P. LEVENTIS;
CITIZENS ASKING FOR A SAFE
ENVIRONMENT, INCORPORATED
(CASE); SOUTH CAROLINA
DEPARTMENT OF NATURAL
RESOURCES; SOUTH CAROLINA PUBLIC
SERVICE AUTHORITY,
Intervenors/Defendants,
UNITED STATES OF AMERICA,
Amicus Curiae.

4 SAFETY-KLEEN, INC. v. WYCHE

SAFETY-KLEEN, INCORPORATED 
(PINEWOOD),
Plaintiff-Appellee,
and
TORONTO DOMINION (TEXAS),
INCORPORATED, As agent and advisor
for secured creditors; TD SECURITIES
(USA), INCORPORATED, As agent and
advisor for secured creditors,
Intervenors/Plaintiffs,
and
OFFICIAL COMMITTEE OF UNSECURED
CREDITORS OF SAFETY KLEEN
CORPORATION,


Amicus Curiae,
No. 00-2180
v.
STATE OF SOUTH CAROLINA;
BRADFORD W. WYCHE, Chairman,
South Carolina Board of Health and
Environmental Control, in his
official capacity; SOUTH CAROLINA
BOARD OF HEALTH AND
ENVIRONMENTAL CONTROL; DOUGLAS
E. BRYANT, Commissioner, South
Carolina Department of Health and
Environmental Control, in his
official capacity; SOUTH CAROLINA
DEPARTMENT OF HEALTH AND
ENVIRONMENTAL CONTROL,
Defendants,
and

 SAFETY-KLEEN, INC. v. WYCHE 5

SIERRA CLUB; PHIL P. LEVENTIS; 
CITIZENS ASKING FOR A SAFE
ENVIRONMENT, INCORPORATED
(CASE); SOUTH CAROLINA
DEPARTMENT OF NATURAL
RESOURCES,
Intervenors/Defendants,
and

SOUTH CAROLINA PUBLIC SERVICE
AUTHORITY,
Intervenor/Defendant-Appellant,
UNITED STATES OF AMERICA,
Amicus Curiae.

SAFETY-KLEEN, INCORPORATED 
(PINEWOOD),
Plaintiff-Appellee,
and
TORONTO DOMINION (TEXAS),
INCORPORATED, As agent and advisor
for secured creditors; TD SECURITIES

(USA), INCORPORATED, As agent and
advisor for secured creditors, No. 00-2181
Intervenors/Plaintiffs,
and
OFFICIAL COMMITTEE OF UNSECURED
CREDITORS OF SAFETY KLEEN
CORPORATION,
Amicus Curiae,
v.

6 SAFETY-KLEEN, INC. v. WYCHE

STATE OF SOUTH CAROLINA; 
BRADFORD W. WYCHE, Chairman,
South Carolina Board of Health and
Environmental Control, in his
official capacity; SOUTH CAROLINA
BOARD OF HEALTH AND
ENVIRONMENTAL CONTROL; DOUGLAS
E. BRYANT, Commissioner, South
Carolina Department of Health and
Environmental Control, in his
official capacity; SOUTH CAROLINA
DEPARTMENT OF HEALTH AND
ENVIRONMENTAL CONTROL,
Defendants,
SOUTH CAROLINA DEPARTMENT OF 
NATURAL RESOURCES; SOUTH
CAROLINA PUBLIC SERVICE
AUTHORITY,
Intervenors/Defendants,
and
SIERRA CLUB; PHIL P. LEVENTIS;
CITIZENS ASKING FOR A SAFE
ENVIRONMENT, INCORPORATED
(CASE),
Intervenors/Defendants-Appellants.
UNITED STATES OF AMERICA,
Amicus Curiae.

 SAFETY-KLEEN, INC. v. WYCHE 7

SAFETY-KLEEN, INCORPORATED 
(PINEWOOD),
Plaintiff-Appellee,
and
TORONTO DOMINION (TEXAS),
INCORPORATED, As agent and advisor
for secured creditors; TD SECURITIES
(USA), INCORPORATED, As agent and
advisor for secured creditors,
Intervenors/Plaintiffs,
and
OFFICIAL COMMITTEE OF UNSECURED
CREDITORS OF SAFETY KLEEN
CORPORATION,


Amicus Curiae,
No. 00-2182
v.
STATE OF SOUTH CAROLINA;
BRADFORD W. WYCHE, Chairman,
South Carolina Board of Health and
Environmental Control, in his
official capacity; SOUTH CAROLINA
BOARD OF HEALTH AND
ENVIRONMENTAL CONTROL; DOUGLAS
E. BRYANT, Commissioner, South
Carolina Department of Health and
Environmental Control, in his
official capacity; SOUTH CAROLINA
DEPARTMENT OF HEALTH AND
ENVIRONMENTAL CONTROL,
Defendants,
and

8 SAFETY-KLEEN, INC. v. WYCHE

SIERRA CLUB; PHIL P. LEVENTIS; 
CITIZENS ASKING FOR A SAFE
ENVIRONMENT, INCORPORATED
(CASE); SOUTH CAROLINA PUBLIC
SERVICE AUTHORITY,
Intervenors/Defendants,
and 
SOUTH CAROLINA DEPARTMENT OF
NATURAL RESOURCES,
Intervenor/Defendant-Appellant.
UNITED STATES OF AMERICA,
Amicus Curiae.

SAFETY-KLEEN, INCORPORATED 
(PINEWOOD),
Plaintiff,
and
TORONTO DOMINION (TEXAS),
INCORPORATED, As agent and advisor
for secured creditors; TD SECURITIES
(USA), INCORPORATED, As agent and  No. 00-2213
advisor for secured creditors,
Intervenors/Plaintiffs-Appellants,
OFFICIAL COMMITTEE OF UNSECURED
CREDITORS OF SAFETY KLEEN
CORPORATION,
Amicus Curiae,
v.

 SAFETY-KLEEN, INC. v. WYCHE 9

BRADFORD W. WYCHE, Chairman, 
South Carolina Board of Health and
Environmental Control, in his
official capacity; SOUTH CAROLINA
BOARD OF HEALTH AND
ENVIRONMENTAL CONTROL; DOUGLAS
E. BRYANT, Commissioner, South
Carolina Department of Health and
Environmental Control, in his
official capacity; SOUTH CAROLINA
DEPARTMENT OF HEALTH AND
ENVIRONMENTAL CONTROL,
Defendants-Appellees,
SIERRA CLUB; PHIL P. LEVENTIS; 
CITIZENS ASKING FOR A SAFE
ENVIRONMENT, INCORPORATED
(CASE); SOUTH CAROLINA
DEPARTMENT OF NATURAL
RESOURCES; SOUTH CAROLINA PUBLIC
SERVICE AUTHORITY,
Intervenors/Defendants-Appellees,
and
STATE OF SOUTH CAROLINA,
Defendant.
UNITED STATES OF AMERICA,
Amicus Curiae.

10 SAFETY-KLEEN, INC. v. WYCHE

SAFETY-KLEEN, INCORPORATED 
(PINEWOOD),
Plaintiff,
TORONTO DOMINION (TEXAS),
INCORPORATED, As agent and advisor
for secured creditors; TD SECURITIES
(USA), INCORPORATED, As agent and
advisor for secured creditors,
Intervenors/Plaintiffs,
and
OFFICIAL COMMITTEE OF UNSECURED
CREDITORS OF SAFETY KLEEN
CORPORATION,
Amicus Curiae-Appellant,  No. 00-2214
v.
BRADFORD W. WYCHE, Chairman,
South Carolina Board of Health and
Environmental Control, in his
official capacity; SOUTH CAROLINA
BOARD OF HEALTH AND
ENVIRONMENTAL CONTROL; DOUGLAS
E. BRYANT, Commissioner, South
Carolina Department of Health and
Environmental Control, in his
official capacity; SOUTH CAROLINA
DEPARTMENT OF HEALTH AND
ENVIRONMENTAL CONTROL,
Defendants-Appellees,

 SAFETY-KLEEN, INC. v. WYCHE 11

SIERRA CLUB; PHIL P. LEVENTIS; 
CITIZENS ASKING FOR A SAFE
ENVIRONMENT, INCORPORATED
(CASE); SOUTH CAROLINA
DEPARTMENT OF NATURAL
RESOURCES; SOUTH CAROLINA PUBLIC
SERVICE AUTHORITY,
Intervenors/Defendants-Appellees, 
and
STATE OF SOUTH CAROLINA,
Defendant.
UNITED STATES OF AMERICA,
Amicus Curiae.

Appeals from the United States District Court
for the District of South Carolina, at Columbia.
Matthew J. Perry, Jr., Senior District Judge.
(CA-00-2243-3-10)
Argued: December 8, 2000
Decided: December 19, 2001

Before WIDENER, LUTTIG, and MICHAEL, Circuit Judges.

Affirmed in part, reversed in part, and dismissed in part by published
opinion. Judge Michael wrote the opinion, in which Judge Widener
joined and in which Judge Luttig joined except for part III.A. Judge
Widener wrote a concurring opinion, and Judge Luttig wrote a con-
curring opinion.

COUNSEL

ARGUED: Stuart Henry Newberger, CROWELL & MORING,
L.L.P., Washington, D.C.; Richard Chase Tufaro, MILBANK,
12 SAFETY-KLEEN, INC. v. WYCHE
TWEED, HADLEY & MCCLOY, L.L.P., Washington, D.C., for
Appellants. Benjamin A. Hagood, Jr., CRAVER, HAGOOD &
KERR, Charleston, South Carolina; James Stuart Chandler, Jr.,
Georgetown, South Carolina, for Appellees. ON BRIEF: Clifton S.
Elgarten, Ellen B. Steen, Aryeh S. Portnoy, Adam Gajadharsingh,
CROWELL & MORING, L.L.P., Washington, D.C.; Henry H. Tay-
lor, Vice President and General Counsel, SAFETY-KLEEN CORPO-
RATION, Columbia, South Carolina; David Kurtz, SKADDEN,
ARPS, SLATE, MEAGHER & FLOM, L.L.P., Chicago, Illinois; Har-
vey R. Miller, David R. Berz, John J. Rapisardi, WEIL, GOTSHAL
& MANGES, L.L.P., New York, New York; Thomas S. Tisdale, Ste-
phen L. Brown, YOUNG, CLEMENT, RIVERS & TISDALE, L.L.P.,
Charleston, South Carolina; Luc A. Despins, MILBANK, TWEED,
HADLEY & MCCLOY, L.L.P., Washington, D.C., for Appellants.
Robert A. Kerr, Jr., Wendy L. Wilkie, CRAVER, HAGOOD &
KERR, Charleston, South Carolina; Carlisle Roberts, Jr., Jacquelyn S.
Dickman, E. Katherine Wells, Office of General Counsel, SOUTH
CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMEN-
TAL CONTROL, Columbia, South Carolina, for Appellees. Lois J.
Schiffer, Assistant Attorney General, John A. Bryson, Alan S. Tenen-
baum, Randall M. Stone, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C.; Nina Rivera, Christine McCullouch,
ENVIRONMENTAL PROTECTION AGENCY, Washington, D.C.,
for Amicus Curiae United States.

OPINION

MICHAEL, Circuit Judge:

Safety-Kleen, Inc., a Chapter 11 debtor, filed this adversary pro-
ceeding against the South Carolina Department of Health and Envi-
ronmental Control (DHEC) in an effort to prevent the agency from
closing Safety-Kleen’s Pinewood facility, a commercial hazardous
waste landfill. Safety-Kleen appeals the district court’s order denying
the company a preliminary injunction to enjoin DHEC from closing
the Pinewood facility. DHEC, in turn, cross-appeals the district
court’s determinations (1) that the Rooker-Feldman doctrine does not
bar Safety-Kleen’s action and (2) that the automatic stay blocks
 SAFETY-KLEEN, INC. v. WYCHE 13
DHEC’s attempt to require Safety-Kleen to comply with state finan-
cial assurance regulations. DHEC also attempts to take an interlocu-
tory appeal from the district court’s order denying its motion to
dismiss Safety-Kleen’s complaint. Finally, the Official Committee of
Unsecured Creditors of Safety-Kleen ("Official Committee") appeals
the denial of its motion to intervene. We hold that (1) Rooker-
Feldman does not bar Safety-Kleen’s action; (2) the district court did
not err in denying Safety-Kleen’s motion for a preliminary injunction;
(3) the automatic stay does not apply to DHEC’s efforts to enforce the
financial assurance requirements; (4) DHEC may not appeal the
denial of its motion to dismiss; and (5) the Official Committee’s
motion to intervene should have been allowed. As a result, we affirm
in part, reverse in part, and dismiss in part.

I.

Safety-Kleen operates the Pinewood facility, one of only twenty
commercial hazardous waste landfills in the country. Pinewood is
located in Sumter County, South Carolina, and is within 1200 feet of
Lake Marion, a popular recreation spot and a source of drinking water
for several thousand people. Pinewood began accepting hazardous
waste in 1978 and operated under a permit issued by DHEC. DHEC
issued the original permit without providing public notice or a hear-
ing. After Congress passed the Resource Conservation and Recovery
Act (RCRA), Pub. L. No. 94-580, 90 Stat. 2795 (1976) (codified as
amended at 42 U.S.C. §§ 6901-6992k), Safety-Kleen was required to
apply for a new hazardous waste permit from DHEC. Under RCRA
Pinewood qualified for "interim status," which allowed Pinewood to
remain open pending DHEC’s determination of whether to award
Safety-Kleen a final permit.

DHEC scheduled a public hearing and solicited comments on
whether and under what conditions Safety-Kleen was entitled to a
final permit to operate Pinewood. In July 1989 DHEC staff, in consul-
tation with the EPA, issued a final permit to Safety-Kleen to operate
Pinewood. The permit provided that Pinewood had a capacity limit of
2250 acre-feet1 of waste, but it did not specify whether nonhazardous
1
An acre-foot is the volume of water necessary to cover one acre to a
depth of one foot. It is equal to 43,560 cubic feet or 325,851 gallons.
14 SAFETY-KLEEN, INC. v. WYCHE
waste counted toward the capacity limit. Safety-Kleen objected to
some of the permit’s conditions and requested a hearing with a DHEC
hearing officer.2 Several environmental groups also requested a hear-
ing to challenge the issuance of a final permit. Before the hearing
Safety-Kleen and DHEC agreed to resolve their differences over the
permit terms by entering into a stipulated agreement. The agreement
contained two important provisions. First, Pinewood could store up to
2461 acre-feet of nonhazardous waste in addition to 2250 acre-feet of
hazardous waste. Second, Safety-Kleen agreed not to apply for addi-
tional landfill space until Pinewood was within three years of reach-
ing its capacity. The agreement, however, was not binding on either
the hearing officer or the DHEC Board.

The DHEC hearing officer recommended approval of the agency’s
decision to issue the final permit as modified by the stipulated agree-
ment. The environmental groups asked the DHEC Board to review
the hearing officer’s recommendation. The Board upheld the issuance
of the final permit but rejected the stipulated agreement’s separate
allowance for nonhazardous waste. In other words, the Board con-
cluded that Pinewood’s capacity should be limited to a total of 2250
acre-feet of total waste, whether hazardous or nonhazardous. The
Board’s decision, however, was prospective only. Therefore, any non-
hazardous waste stored in Pinewood prior to the Board’s decision
would not be counted against the cap. While Safety-Kleen was not
pleased with the Board’s decision to reject the separate cap for nonha-
zardous waste, Safety-Kleen estimated that Pinewood would have
between four and one-half to six years of unused space left under the
permit.

Both Safety-Kleen and the environmental groups petitioned the
Sumter County Court of Common Pleas for judicial review of the
Board’s decision. Safety-Kleen sought reversal of the Board’s deci-
2
Waste operators and other interested persons dissatisfied with
DHEC’s permit decisions may seek an adjudicatory hearing before a
hearing officer. See 25 S.C. Code Ann. Regs. 61-72 Part II. Parties may
seek review of the hearing officer’s recommendation by the DHEC
Board. See id. Part VIII. The Board consists of seven members who are
appointed by the Governor with the advice and consent of the state Sen-
ate.
 SAFETY-KLEEN, INC. v. WYCHE 15
sion to reject the separate cap for nonhazardous waste, and the envi-
ronmental groups challenged the issuance of the permit for Pinewood.
The Court of Common Pleas denied each of the petitions for review,
and both sides then appealed to the South Carolina Court of Appeals.
The Court of Appeals upheld the Board’s decision, but with one sig-
nificant change. See Leventis v. S.C. DHEC, 530 S.E.2d 643 (S.C. Ct.
App. 2000). The court concluded that the rejection of the separate cap
for nonhazardous waste would operate retrospectively as well as pro-
spectively. See id. at 660. In other words, any nonhazardous waste
stored in Pinewood before the Board’s decision would count against
the total cap. See id. As a result of this decision, Pinewood became
immediately full under the permit. Specifically, the combination of
the existing nonhazardous and hazardous waste stored at Pinewood
exceeded the 2250 acre-feet cap. The Court of Appeals’ decision had
dramatic consequences for Safety-Kleen. The instant before the deci-
sion, Pinewood had a substantial amount of unfilled space, and
Safety-Kleen was barred by the stipulated agreement from seeking
additional space. The instant after the decision, Pinewood suddenly
had no more permitted space. Safety-Kleen promptly petitioned for a
writ of certiorari to the South Carolina Supreme Court.

While the petition for certiorari was pending, Safety-Kleen encoun-
tered another serious problem, this one relating to the bonds posted
by the company to secure certain facility-related obligations. On June
1, 2000, the U.S. Treasury removed Frontier Insurance Company
from its list of approved sureties. Frontier was the issuer of the bonds
posted by Safety-Kleen to secure the costs associated with Pine-
wood’s closure and post-closure maintenance. Safety-Kleen’s permit
and state law require that the surety company issuing the required
bonds be among those listed as acceptable by the Treasury. On June
9 DHEC ordered Safety-Kleen to acquire substitute bonds within 18
days or cease accepting waste (the "bond order"). Safety-Kleen did
not have the financial ability to comply with DHEC’s order, and later
that day the company filed for Chapter 11 bankruptcy in the District
of Delaware.

Four days later, on June 13, the South Carolina Supreme Court
denied Safety Kleen’s petition for a writ of certiorari to review the
Court of Appeals’ decision. The next day DHEC ordered Pinewood
to cease accepting waste within 30 days because Pinewood had
16 SAFETY-KLEEN, INC. v. WYCHE
exhausted all of its permitted space under its existing permit (the "clo-
sure order"). Safety-Kleen responded by seeking additional capacity
on both a temporary and a permanent basis. DHEC denied the request
for temporary authorization to store additional waste. Safety-Kleen’s
request for permanent authorization is currently pending with DHEC.

On July 7, 2000, Safety-Kleen filed this adversary proceeding in
bankruptcy court in the District of Delaware, challenging DHEC’s
actions and seeking injunctive relief. The district court granted
Safety-Kleen’s motion for withdrawal of reference and transferred the
case to the District of South Carolina, where the Official Committee
moved to intervene. The district court in South Carolina denied the
Committee’s motion, but permitted it to participate as amicus curiae.

In its complaint Safety-Kleen asserts that it has a due process right
to additional capacity. It also asserts that DHEC’s attempt to close
Pinewood violates the Equal Protection Clause, the First Amendment,
the dormant Commerce Clause, and RCRA. As soon as the case was
transferred to South Carolina, Safety-Kleen pressed its motion for a
preliminary injunction. DHEC, on the other hand, moved to dismiss
Safety-Kleen’s complaint on the merits and on the ground that the
Rooker-Feldman doctrine bars the action. DHEC also sought a deter-
mination that the automatic stay did not bar enforcement of the bond
order. The district court ruled as follows: it held that Rooker-Feldman
did not bar the suit; it denied Safety-Kleen’s motion for a preliminary
injunction; it concluded that the bond order was subject to the auto-
matic stay; it denied DHEC’s motion to dismiss the suit on the merits,
but certified the dismissal question for interlocutory review under 28
U.S.C. § 1292(b); and it granted Safety-Kleen a thirty-day injunction
pending this appeal.

The parties and the Official Committee filed notices of appeal.
DHEC, however, failed to file with this court a timely application for
permission to appeal the denial of the motion to dismiss. The district
court recertified the question for review, and DHEC then filed an
application for permission to appeal, which is still pending. After the
expiration of the thirty-day injunction, we denied Safety-Kleen an
injunction pending appeal.
 SAFETY-KLEEN, INC. v. WYCHE 17
II.

DHEC argues that the Rooker-Feldman doctrine bars Safety-
Kleen’s suit because the suit would require federal court review of the
South Carolina Court of Appeals’ decision. The Rooker-Feldman
doctrine holds that "lower federal courts generally do not have
[subject-matter] jurisdiction to review state-court decisions." Plyler v.
Moore, 129 F.3d 728, 731 (4th Cir. 1997). See also D.C. Ct. App. v.
Feldman, 460 U.S. 462, 482-86 (1983); Rooker v. Fidelity Trust Co.,
263 U.S. 413, 415-16 (1923). The Rooker-Feldman doctrine pre-
cludes "review of adjudications of the state’s highest court [and] also
the decisions of its lower courts." Jordahl v. Democratic Party, 122
F.3d 192, 199 (4th Cir. 1997). The Rooker-Feldman bar extends not
only to issues actually decided by a state court but also to those that
are "inextricably intertwined with questions ruled upon by a state
court." Plyler, 129 F.3d at 731 (4th Cir. 1997) (internal quotation
marks omitted). A federal claim is "inextricably intertwined" with a
state court decision if "success on the federal claim depends upon a
determination that the state court wrongly decided the issues before
it." Id. (internal quotation marks omitted). The district court held that
Rooker-Feldman does not bar Safety-Kleen’s suit, and our review of
that ruling is de novo. See Guess v. Bd. of Med. Exam’rs, 967 F.2d
998, 1002 (4th Cir. 1992).

Again, DHEC argues that Safety-Kleen cannot succeed on its fed-
eral claims unless we reexamine issues decided by the South Carolina
Court of Appeals. We disagree. The issue before the South Carolina
Court of Appeals was whether and under what conditions Safety-
Kleen was entitled to a final permit to operate Pinewood. Specifically,
the state court held that Safety-Kleen was entitled to a permit allow-
ing for the storage of up to 2250 acre-feet of total waste. Safety-
Kleen’s federal suit assumes that the Court of Appeals correctly
decided that its permit is limited to 2250 acre-feet of space for hazard-
ous and nonhazardous waste.3 Safety-Kleen concedes that it has
3
In certain places Safety-Kleen’s complaint could be read to suggest
that it is challenging the Court of Appeals’ determination that the single
cap operates retrospectively as well as prospectively. See, e.g., Compl.
¶ 6. However, all of the arguments in Safety-Kleen’s appellate papers
18 SAFETY-KLEEN, INC. v. WYCHE
exhausted all of its permitted space. It claims, however, that with all
of its permitted space now exhausted, the Constitution and RCRA
require DHEC to allow it to store additional waste.

Safety-Kleen’s claims do not require us to review any issues "actu-
ally decided" by the South Carolina Court of Appeals. The Court of
Appeals never considered the consequence of Safety-Kleen’s exhaus-
tion of all of its permitted space. Safety-Kleen’s claims also do not
require us to review any issues "inextricably intertwined" with any
matters decided by the Court of Appeals. It is consistent to say that
under state law Safety-Kleen has exhausted all of its permitted space
and that it still has a federal entitlement to additional capacity. In sum,
Safety-Kleen’s claims do not require us to review the South Carolina
Court of Appeals decision, and Rooker-Feldman therefore does not
bar this action.

III.

Safety-Kleen argues that the district court erred in denying it a pre-
liminary injunction to enjoin DHEC from enforcing the closure order.
First, Safety-Kleen claims that the district court applied the wrong
legal standard in evaluating whether it was entitled to a preliminary
injunction. Second, it claims that even if the court applied the correct
standard, the court nonetheless erred in denying an injunction. We
hold that even if the district court applied the wrong legal standard,
Safety-Kleen is still not entitled to a preliminary injunction.

A.

Safety-Kleen claims that the district court used the wrong standard
in evaluating its likelihood of success on its claims. In evaluating
whether to grant a preliminary injunction, a court should consider (1)
the likelihood of irreparable harm to the plaintiff if the preliminary

assume that the Court of Appeals correctly decided the issue. Further,
Safety-Kleen’s counsel represented at oral argument that it would not
argue that the state court’s decision on capacity was incorrect. Accord-
ingly, we treat Safety-Kleen’s claims as assuming that the state court’s
determination of the capacity issue was correct.
 SAFETY-KLEEN, INC. v. WYCHE 19
injunction is denied; (2) the likelihood of harm to the defendant if the
injunction is granted; (3) the likelihood that the plaintiff will succeed
on the merits; and (4) the public interest. See Direx Israel, Ltd. v.
Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir. 1991). The
"likelihood of irreparable harm to the plaintiff" is the first factor that
a court should consider. See id. A court’s next step is to balance the
likelihood of harm to the plaintiff against the likelihood of harm to
the defendant. See Blackwelder Furniture Co. v. Seilig Mfg. Co., 550
F.2d 189, 195 (4th Cir. 1977). If the harm balance "tips decidedly in
favor of the plaintiff, a preliminary injunction will be granted if the
plaintiff has raised questions going to the merits so serious, substan-
tial, difficult and doubtful, as to make them fair ground for litigation
and thus for more deliberate investigation." Rum Creek Coal Sales,
Inc. v. Caperton, 926 F.2d 353, 359 (4th Cir. 1991) (internal quota-
tion marks and citation omitted). In other words, the plaintiff’s case
must at bottom present a "substantial question."

In its order denying a preliminary injunction, the district court out-
lined the standards applicable in evaluating preliminary injunction
motions. The court correctly discussed the interplay between the bal-
ance of harm to the parties and the plaintiff’s likelihood of success.
The court concluded that Safety-Kleen would suffer irreparable harm
if injunctive relief was denied. The court then said that it was "not
convinced that [Safety-Kleen] will likely prevail on the merits of this
controversy." Safety-Kleen claims that because the district court con-
cluded that it would suffer irreparable harm, it was not required to
make such a strong showing of likelihood of success. Rather, Safety-
Kleen argues that it only had to raise a substantial question. We need
not reach the question of whether the district court erred in requiring
too much of Safety-Kleen on the "likelihood of success" scale. As we
will discuss, Safety-Kleen’s case does not in any event present a sub-
stantial question. Therefore, Safety-Kleen cannot meet the standard
that it relies upon. Accordingly, even if the district court erred, the
likelihood of success factor (considered at the "substantial question"
level) would still weigh against the grant of a preliminary injunction.

B.

We turn now to a fuller discussion of whether the district court
erred in denying a preliminary injunction. We review the decision to
20 SAFETY-KLEEN, INC. v. WYCHE
grant or deny a preliminary injunction for an abuse of discretion. See
Rum Creek Coal Sales, 926 F.2d at 358. We review factual determi-
nations under a clearly erroneous standard and legal conclusions de
novo. See Direx Israel, 952 F.2d at 815. The parties do not dispute
the district court’s finding that Safety-Kleen will suffer decidedly
more harm than DHEC if a preliminary injunction is denied. There-
fore, we will only discuss whether Safety-Kleen has presented a sub-
stantial question and the public’s interest in the grant or denial of an
injunction.

1.

Safety-Kleen asserts that DHEC is prohibited from denying Pine-
wood additional capacity for several reasons. Safety-Kleen claims
that the closure order violates procedural due process, substantive due
process, the Equal Protection Clause, the First Amendment, and the
dormant Commerce Clause. Safety-Kleen also argues that RCRA pre-
empts the order. We discuss Safety-Kleen’s claims in turn.

a.

Safety-Kleen’s first claim is that its procedural due process rights
were violated by the closure order. In order to succeed on its proce-
dural due process claim, Safety-Kleen must show that "there exists a
liberty or property interest which has been interfered with by the
State" and that "the procedures attendant upon that deprivation" were
constitutionally insufficient. Ky. Dep’t of Corr. v. Thompson, 490
U.S. 454, 460 (1989). We conclude that Safety-Kleen has not
presented a substantial question that it has a protectible property inter-
est at stake. The Fourteenth Amendment itself does not create prop-
erty interests. See Gardner v. City of Baltimore Mayor & City
Council, 969 F.2d 63, 68 (4th Cir. 1992). Rather, "they are created
and their dimensions are defined by existing rules or understandings
that stem from an independent source such as state law." Bd. of
Regents v. Roth, 408 U.S. 564, 577 (1972). "To have a property inter-
est in a benefit, a person must clearly have more than an abstract need
or desire for it. He must have more than a unilateral expectation of
it. He must, instead, have a legitimate claim of entitlement to it." Id.

Safety-Kleen’s procedural due process claim hinges on whether it
can show that it has an entitlement to additional capacity. Safety-
 SAFETY-KLEEN, INC. v. WYCHE 21
Kleen concedes that it has filled all of its permitted space and that it
would operate in violation of state law if it continued to accept waste.
It argues, however, that it has a property right to additional capacity.
As we will explain, the South Carolina environmental regulatory
scheme does not create the entitlement that Safety-Kleen seeks.
Safety-Kleen has made requests for additional space under three sepa-
rate provisions of the South Carolina Hazardous Waste Management
Regulations. First, Safety-Kleen requested that DHEC modify its per-
mit to allow for more space. See 25 S.C. Code Ann. Regs. 61-
79.270.42. DHEC has not refused this request outright. Rather, DHEC
is requiring Safety-Kleen to comply with the normal notice and com-
ment procedure for permit modification. Safety-Kleen argues that it
has the right to bypass the normal notice and comment procedure and
begin accepting waste immediately. Contrary to Safety-Kleen’s asser-
tion, the regulations permitting DHEC to modify an operator’s permit
simply do not allow Safety-Kleen to circumvent these procedures.
The request for additional capacity is considered a proposed "Class 3
modification" to the permit. See id. 61-79.270.42 app. I(F)(1)(a).
Under South Carolina law DHEC must follow notice and comment
procedures before granting a Class 3 modification. See id. 61-
79.270.42(c)(2). Perhaps Safety-Kleen will be entitled to a permit
modification in due course, but it does not have an entitlement to
bypass the notice and comment procedure. Therefore, the provision
allowing DHEC to modify Safety-Kleen’s permit does not create the
immediate entitlement that Safety-Kleen seeks.

Safety-Kleen also requested that DHEC grant a temporary authori-
zation to allow for additional capacity while the permit modification
request is pending. See id. 61-79.270.42(e). DHEC denied this
request. Safety-Kleen argues that it has an entitlement to receive such
authorization. DHEC does have the power to issue a temporary autho-
rization for additional space, see id., and DHEC may grant the autho-
rization immediately without following any public notice or comment
procedures, see id. 61-79.270.42(e)(1). However, in order for DHEC
to grant the temporary authorization request, the operator must be in
compliance "with the standards of Part 264." Id. 61-
79.270.42(e)(3)(i). One of the requirements of Part 264 is that the
operator have adequate financial assurance for closure, post-closure,
and third-party liability costs. See id. 61-79.264.143; 61-79.264.145;
61-79.264.147. Safety-Kleen has chosen to use surety bonds to satisfy
22 SAFETY-KLEEN, INC. v. WYCHE
the financial assurance requirements. When an operator uses surety
bonds, the bond issuer must be on the U.S. Department of Treasury’s
approved list. See id. 61-79.264.143(c)(1); 61-79.264.145(c)(1); 61-
79.264.147(i)(2). Safety-Kleen does not have bonds from such an
issuer and has not otherwise provided adequate financial assurance.
Therefore, Safety-Kleen does not have an entitlement to receive tem-
porary authorization.

Finally, Safety-Kleen requested additional space by filing an
amendment to a pending permit renewal application. See id. 61-
79.124.31. DHEC also rejected this request. While an operator may
request additional space by filing an amendment to a pending renewal
application, DHEC may not approve the amendment unless the opera-
tor follows a pre-application public comment procedure. See id.
Safety-Kleen has not followed this procedure. Again, Safety-Kleen
has no right to bypass this procedure and therefore does not have an
entitlement to have its amendment approved.

The South Carolina environmental regulatory scheme does not
create an entitlement to receive immediate additional space. Safety-
Kleen nonetheless argues that either its dependence on the permit for
its viability as a business or the stipulated agreement is sufficient to
give the company a property interest. Safety-Kleen first argues that
its dependence on the permit for its viability gives rise to a property
interest. To have a property interest in a benefit, a person must have
an entitlement to it. See Roth, 408 U.S. at 577. In this case South Car-
olina has an explicit procedure for acquiring additional space. There
is nothing in the South Carolina scheme that allows us to presume that
because Safety-Kleen’s business viability depends upon receiving
additional space, the state has implicitly created an entitlement to
immediate additional space.

Safety-Kleen also argues that the stipulated agreement creates a
property interest. Under the stipulated agreement Safety-Kleen was
prohibited from applying for additional space until Pinewood was
within three years of reaching its capacity. Pinewood had more than
three years of space left the instant before the Court of Appeals’ deci-
sion, but was immediately full once the decision was rendered.
Safety-Kleen claims that the agreement created an expectancy that it
would be allowed to apply for additional space without interruption
 SAFETY-KLEEN, INC. v. WYCHE 23
of its business. Safety-Kleen’s argument is suspect, however, because
the bind created by the South Carolina Court of Appeals decision was
foreseeable and avoidable. Safety-Kleen had to know that either the
DHEC Board or the South Carolina courts might reject the separate
cap for nonhazardous waste. Nonetheless, while the permit was being
litigated, Safety-Kleen accepted nonhazardous waste in a sufficient
quantity that if the separate nonhazardous waste cap was rejected out-
right, Pinewood would become immediately full under its permit.
Safety-Kleen could have avoided this contingency by limiting the
amount of nonhazardous waste it accepted. Because this contingency
was foreseeable and avoidable, Safety-Kleen cannot claim that it had
an expectancy of uninterrupted waste collection.

In order to succeed on its procedural due process claim, Safety-
Kleen must show that it has an entitlement to immediate additional
capacity. Because Safety-Kleen does not have such an entitlement, its
procedural due process claim does not raise a substantial question.

b.

Safety-Kleen’s second claim is that it has a substantive due process
right to additional capacity. To succeed on its substantive due process
claim, Safety-Kleen must show that (1) it has a liberty or property
interest; (2) the state deprived it of this liberty or property interest;
and (3) the state’s action falls "so far beyond the outer limits of legiti-
mate governmental action that no process could cure the deficiency."
Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810, 827 (4th Cir.
1995). As indicated above, Safety-Kleen cannot show an entitlement
under state law to immediate additional capacity. And, we have no
basis to conclude that it has such an entitlement because of any liberty
or property interest embodied in the Constitution. Therefore, Safety-
Kleen’s substantive due process claim does not raise a substantial
question.

c.

Safety-Kleen’s third claim is that the closure order violates the
Equal Protection Clause. It claims that the order is irrational because
there is no showing that Pinewood is unsafe. The question is whether
the closure order is rationally related to a legitimate state interest. See
24 SAFETY-KLEEN, INC. v. WYCHE
id. As we have said, under state law DHEC can grant Safety-Kleen
additional space only after public notice and comment procedures
have been followed. It is rational to cap the amount of waste that an
operator can collect and to allow the public an opportunity to com-
ment before additional capacity is granted. Safety-Kleen’s equal pro-
tection claim is therefore without merit.

d.

Safety-Kleen’s fourth claim is that the closure order was issued in
retaliation for its bankruptcy filing and was therefore in violation of
the First Amendment right to "petition the Government for a redress
of grievances." U.S. Const. amend I. Safety-Kleen would have a via-
ble First Amendment claim if DHEC issued the closure order in retal-
iation for the bankruptcy filing. See, e.g., Harrison v. Springdale
Water & Sewer Comm’n, 780 F.2d 1422, 1428 (8th Cir. 1986) (hold-
ing that the First Amendment prohibits state from taking administra-
tive action for the sole purpose of forcing citizens to settle a lawsuit
against the state). However, Safety-Kleen has proffered no evidence
that DHEC issued the closure order in retaliation for the bankruptcy
filing. DHEC issued the closure order the day after the South Carolina
Supreme Court denied certiorari. The timing of the order strongly
suggests that DHEC issued the order because Pinewood had
exhausted all of its permitted space and not because Safety-Kleen had
filed for bankruptcy. Because Safety-Kleen has proffered no evidence
that DHEC’s actions were retaliatory, its First Amendment claim does
not raise a substantial question.

e.

Safety-Kleen’s fifth claim is that the closure order violates the dor-
mant Commerce Clause. Specifically, Safety-Kleen argues that clos-
ing Pinewood will unduly burden the interstate market in hazardous
waste disposal. Because Safety-Kleen does not claim that DHEC has
discriminated against interstate commerce in favor of in-state com-
merce, it must show that DHEC’s actions are "clearly excessive in
relation to the putative local benefits." Pike v. Bruce Church, Inc.,
397 U.S. 137, 142 (1970). It does not appear that Safety-Kleen will
be able to meet this high standard. See Chambers Med. Techs. v. Bry-
ant, 52 F.3d 1252, 1261-62 (4th Cir. 1995) (upholding cap on amount
 SAFETY-KLEEN, INC. v. WYCHE 25
of waste a facility could treat under this standard). The state has a
legitimate interest in imposing a cap and in allowing public notice and
comment before granting an operator additional space. Safety-Kleen
has not shown that the burden of the cap and the opportunity for pub-
lic notice and comment is "clearly excessive" in relation to the bene-
fits of such measures. As a result, Safety-Kleen’s dormant Commerce
Clause claim does not raise a substantial question.

f.

Safety-Kleen’s sixth claim is that RCRA preempts DHEC’s closure
order. RCRA authorizes the states to develop and implement their
own hazardous waste management scheme "in lieu of the Federal pro-
gram." 42 U.S.C. § 6926. A state must apply to the EPA for permis-
sion to administer its own program. See id. § 6926(b). The EPA will
authorize a state to administer its own program if the state program
is the "equivalent" of RCRA and its accompanying regulations. Id. A
state may choose to impose "more stringent" regulations than those
imposed by RCRA. Id. § 6929. In other words, "RCRA sets a floor,
not a ceiling, for state regulation of hazardous wastes." Old Bridge
Chems., Inc. v. N.J. Dep’t of Envtl. Prot., 965 F.2d 1287, 1296 (3d
Cir. 1992). The EPA has authorized the South Carolina program.

In this case the provisions of the South Carolina environmental
scheme dealing with the grant of additional space to an operator are
identical in all material respects to the EPA’s RCRA regulations.
Compare 40 C.F.R. § 270.42(c) (Class 3 modifications to permit); id.
§ 270.42(e) (temporary authorization for Class 3 modification); id.
§ 124.31 (notice and comment procedure for amendment to permit
renewal), with 25 S.C. Code Ann. Regs. 61-79.270.42(c) (Class 3
modifications to permit); id. 61-79.270.42(e) (temporary authoriza-
tion for Class 3 modification); 61-79.124.31 (notice and comment
procedure for amendment to permit renewal). Because the South Car-
olina scheme is essentially identical to the EPA’s RCRA regulations,
Safety-Kleen’s preemption claim does not present a substantial ques-
tion.

2.

We now turn to the question of whether the district court erred in
concluding that the public interest weighs against the grant of an
26 SAFETY-KLEEN, INC. v. WYCHE
injunction. We agree with the district court. As discussed above,
South Carolina has a carefully crafted process for granting a waste
disposal operator additional space. That process includes the opportu-
nity for public notice and comment. Safety-Kleen seeks to bypass this
procedure by demanding immediate additional capacity. The public
has a strong interest in the opportunity for notice and comment. First,
the notice and comment procedure allows individual citizens and
groups that are affected by an expansion in waste operations to partic-
ipate in the permitting process. If history is any guide, a number of
citizens and interest groups will participate in any process for public
notice and comment on whether Pinewood’s capacity should be
increased. Second, the notice and comment procedure allows for care-
ful and deliberate consideration of whether it is environmentally safe
to allow Safety-Kleen to store additional waste. The Pinewood facility
is located in an environmentally sensitive area. The facility is a mere
1200 feet from Lake Marion, a popular recreational spot and a source
of drinking water for several thousand people. The facility is adjacent
to over 8500 acres of forest and wetlands. The public has a strong
interest in ensuring that DHEC carefully considers whether additional
capacity is warranted. See Coleman v. Paccar Inc., 424 U.S. 1301,
1307 (1976) (vacating stay of enforcement of federal motor vehicle
safety standard in part because of public’s strong interest in safety);
see also Ark. Peace Ctr. v. Ark. Dep’t of Pollution Control, 992 F.2d
145, 147 (8th Cir. 1993) (staying preliminary injunction in part
because of potential environmental harm if an injunction was in
force). We agree with the district court that the public interest weighs
in favor of denying an injunction against DHEC.

3.

In conclusion, we need not decide whether the district court applied
an incorrect legal standard in evaluating Safety-Kleen’s likelihood of
success on its claims. Safety-Kleen has not presented a substantial
question on any of its claims, and the public has a strong interest in
the denial of a preliminary injunction. Accordingly, the district court
did not abuse its discretion in denying Safety-Kleen’s motion for a
preliminary injunction.
 SAFETY-KLEEN, INC. v. WYCHE 27
IV.

DHEC appeals the district court’s determination that the bond
order (that is, DHEC’s efforts to enforce the financial assurance regu-
lations) is subject to the automatic stay. DHEC argues that the order
is exempt from the automatic stay pursuant to the regulatory excep-
tion contained in 11 U.S.C. § 362(b)(4). We have jurisdiction because
the denial of relief from the automatic stay is a final, appealable order.
See Grundy Nat’l Bank v. Tandem Mining Corp., 754 F.2d 1436,
1439 (4th Cir. 1985); see also Nat’l Envtl. Waste Corp. v. City of Riv-
erside (In re Nat’l Envtl. Waste Corp.), 129 F.3d 1052, 1054 (9th Cir.
1997); Orix Credit Alliance v. Delta Res., Inc. (In re Delta Res., Inc.),
54 F.3d 722, 726 (11th Cir. 1995); Eddleman v. United States Dep’t
of Labor, 923 F.2d 782, 784 (10th Cir. 1991); Sonnax Indus., Inc. v.
Tri Components Prods. Corp. (In re Sonnax Indus., Inc.), 907 F.2d
1280, 1283 (2d Cir. 1990).4 The district court concluded without
explanation or analysis that the regulatory exception did not apply to
the bond order. We reverse the district court and hold that the regula-
tory exception applies to the bond order.

When a debtor files for bankruptcy, § 362(a) automatically stays
creditor actions against the debtor that may impact the bankruptcy
estate. A chief purpose of the automatic stay is to allow for a system-
4
In Grundy we held that the denial of relief from an automatic stay is
a final, appealable order under 28 U.S.C. § 158(d). That section allows
us to review "final decisions" by the district court when it acts in its
bankruptcy appellate capacity. In this case, however, the district court
was not reviewing a decision by the bankruptcy court. Rather, the court
issued the challenged order as part of its original jurisdiction. See, e.g.,
Sonnax Indus., 907 F.2d at 1283 (concluding that when a district court
withdraws the reference, it then acts as a trial court as part of its original
jurisdiction). Therefore, 28 U.S.C. § 158(d) is inapplicable and the basis
for our appellate jurisdiction is limited to 28 U.S.C. §§ 1291 and 1292.
See Capitol Credit Plan v. Shaffer, 912 F.2d 749, 752 (4th Cir. 1990).
However, what constitutes a "final decision" under § 158(d) is also a
"final decision" in a bankruptcy case under § 1291. See, e.g., Hatcher v.
Miller (In re Red Carpet Corp.), 902 F.2d 883, 890 n.5 (11th Cir. 1990);
United States v. Nicolet, Inc., 857 F.2d 202, 204 (3d Cir. 1988). There-
fore, Grundy dictates that the denial of relief from the automatic stay is
a final, appealable order under § 1291.
28 SAFETY-KLEEN, INC. v. WYCHE
atic, equitable liquidation proceeding by avoiding a "chaotic and
uncontrolled scramble for the debtor’s assets in a variety of uncoordi-
nated proceedings in different courts." Fidelity Mortgage Investors v.
Camelia Builders, Inc. (In re Fidelity Mortgage Investors), 550 F.2d
47, 55 (2d Cir. 1976). However, the automatic stay does not apply to
any state action "to enforce [a] governmental unit’s or organization’s
police and regulatory power, including the enforcement of a judgment
other than a money judgment." 11 U.S.C. § 362(b)(4). The question
is whether the financial assurance requirements here are part of South
Carolina’s "police and regulatory power."

The difficulty in applying this exception comes in distinguishing
between situations in which the state acts pursuant to its "police and
regulatory power" and situations in which the state acts merely to pro-
tect its status as a creditor. To make this distinction, we look to the
purpose of the law that the state is attempting to enforce. If the pur-
pose of the law is to promote "public safety and welfare," Universal
Life Church, Inc. v. United States (In re Universal Life Church, Inc.),
128 F.3d 1294, 1297 (9th Cir. 1997), or to "effectuate public policy,"
NLRB v. Edward Cooper Painting, Inc., 804 F.2d 934, 942 (6th Cir.
1986) (internal quotation marks omitted), then the exception applies.
On the other hand, if the purpose of the law relates "to the protection
of the government’s pecuniary interest in the debtor’s property," Uni-
versal Life Church, 128 F.3d at 1297, or to "adjudicate private rights,"
Edward Cooper Painting, 804 F.2d at 942 (internal quotation marks
omitted), then the exception is inapplicable. The inquiry is objective:
we examine the purpose of the law that the state seeks to enforce
rather than the state’s intent in enforcing the law in a particular case.
See United States v. Commonwealth Cos. (In re Commonwealth
Cos.), 913 F.2d 518, 523 n.6 (8th Cir. 1990); United States v.
Grooms, No. Crim. A. 96-00071-C, 1997 WL 578752, at *3 (W.D.
Va. Aug. 29, 1997). Of course, many laws have a dual purpose of pro-
moting the public welfare as well as protecting the state’s pecuniary
interest. The fact that one purpose of the law is to protect the state’s
pecuniary interest does not necessarily mean that the exception is
inapplicable. Rather, we must determine the primary purpose of the
law that the state is attempting to enforce. See Yellow Cab Coop. v.
Metro Taxi, Inc. (In re Yellow Cab Coop.), 132 F.3d 591, 597 (10th
Cir. 1997); Javens v. City of Hazel Park (In re Javens), 107 F.3d 359,
367-68 (6th Cir. 1997); EEOC v. Rath Packing Co., 787 F.2d 318,
 SAFETY-KLEEN, INC. v. WYCHE 29
324 (8th Cir. 1986). But see Universal Life Church, 128 F.3d at 1299
("Only if the action is pursued solely to advance a pecuniary interest
of the governmental unit will the automatic stay bar it." (emphasis
added) (internal quotation marks omitted)). Likewise, the fact that the
state action requires the debtor to make an expenditure does not nec-
essarily mean that the regulatory exception is inapplicable. See, e.g.,
Commonwealth Oil Refining Co. v. EPA (In re Commonwealth Oil
Refining Co.), 805 F.2d 1175, 1186 (5th Cir. 1986) (holding that the
EPA could force debtor to comply with environmental regulations
even though compliance would cause debtor to spend money).

In considering whether the regulatory exception applies to environ-
mental laws, courts often focus on whether deterrence is the primary
purpose of the law. For example, in United States v. Nicolet, Inc., 857
F.2d 202 (3d Cir. 1988), the court considered whether the bankruptcy
stay applied to the EPA’s efforts to pursue a CERCLA suit to recover
clean-up costs against the debtor. The EPA conceded that the plain
language of the regulatory exception did not allow the agency to
enforce a monetary judgment. See 11 U.S.C. § 362(b)(4) (limiting
state under its police and regulatory power to enforcing "judgment[s]
other than . . . money judgment[s]"). Nevertheless, the EPA wanted
to obtain a judgment against the debtor for a specific monetary
amount. The Third Circuit agreed with the EPA. The court deter-
mined that CERCLA actions "interject[ ] a valuable deterrence ele-
ment into the CERCLA scheme, ensuring that responsible parties will
be held accountable for their environmental misdeeds." Nicolet, 857
F.2d at 210. See also City of New York v. Exxon Corp., 932 F.2d
1020, 1024 (2d Cir. 1991) (holding that CERCLA suits fall within
regulatory exception because such suits "provide an effective deter-
rent to violators, who will be forced to pay for the government’s costs
in responding to their violations"). Because the primary purpose of
CERCLA suits is to deter environmental misconduct, the court held
that the regulatory exception applied "up to and including entry of a
monetary judgment." Nicolet, 857 F.2d at 210.

Safety-Kleen claims that DHEC’s attempt to enforce the financial
assurance requirements (which form the basis for the bond order)
amount to "grant[ing] [the state] a preference not afforded the other
creditors in the bankruptcy proceeding." Appellant’s Answering &
Reply Br. at 39. We disagree. The financial assurance regulations are
30 SAFETY-KLEEN, INC. v. WYCHE
within the regulatory exception because they serve the primary pur-
pose of deterring environmental misconduct. Stated more positively,
the regulations serve to promote environmental safety in the design
and operation of hazardous waste facilities. The incentive for safety
is obvious: the availability and cost of a bond will be tied directly to
the structural integrity of a facility and the soundness of its day-to-day
operations. When the EPA promulgated its financial assurance regula-
tions (South Carolina’s regulations are essentially parallel), it spelled
out how the regulations would promote environmental protection at
active hazardous waste facilities. Specifically, the EPA emphasized
that the financial assurance requirements would give landfill owners
and operators "an incentive to locate, design, and operate facilities to
minimize closure and post-closure costs" and to "improve operating
procedures and reduce the risk of accidents." Standards Applicable to
Owners and Operators of Hazardous Waste Treatment, Storage, and
Disposal Facilities; Financial Requirements, 47 Fed. Reg. 15032,
15044-45 (Apr. 7, 1982) (explaining benefits of financial assurance
requirements). To put it more bluntly, sloppy "design and operating
procedures . . . are more likely to be avoided" with the financial assur-
ance requirements and the resulting incentive to reduce bond costs. Id.

As we see it, the primary purpose of South Carolina’s financial
assurance regulations is to deter environmental misconduct and to
encourage the safe design and operation of hazardous waste facilities.
This is a clear exercise of the state’s regulatory power. Accordingly,
we hold that the regulatory exception applies to DHEC’s issuance and
enforcement of the bond order. The bankruptcy stay does not apply
to these efforts.

V.

DHEC attempts to appeal the district court’s order denying its
motion to dismiss Safety-Kleen’s complaint for failure to state a
claim. We decline to permit an appeal from this interlocutory order.
The district court certified the dismissal question for review under 28
U.S.C. § 1292(b). When a district court certifies a question for inter-
locutory review, the appellant must, within ten days, file with the
court of appeals an application for permission to appeal. See id. The
ten-day filing requirement is jurisdictional and therefore may not be
waived. See Myles v. Laffitte, 881 F.2d 125, 127 (4th Cir. 1989). In
 SAFETY-KLEEN, INC. v. WYCHE 31
this case DHEC failed to file an application with us and did not real-
ize its mistake until two and one-half months after the ten-day period
had passed. DHEC then filed a motion with the district court, request-
ing that it recertify the question for review. The district court recerti-
fied the dismissal question and DHEC then filed an application for
permission to appeal. We hold that the underlying recertification was
improper in this instance.

A district court has the power to recertify a question for review
when the appellant fails to file the required application for permission
to appeal. See Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147,
162 (1984) (Stevens, J., dissenting); Marisol v. Giuliani, 104 F.3d
524, 528 (2d Cir. 1997); Nuclear Eng’g Co. v. Scott, 660 F.2d 241,
247 (7th Cir. 1981). A district court’s power (or discretion) to recer-
tify is not unlimited, however. The consideration of whether to recer-
tify is channeled through two steps. First, the district court should
consider whether the appellant can show excusable neglect. (A law-
yer’s lack of knowledge of § 1292(b)’s requirement for an application
to the court of appeals within ten days will not ordinarily constitute
excusable neglect.) Second, if the appellant can show excusable
neglect, the court should consider whether the appellee can show suf-
ficient prejudice to warrant a denial of recertification. We note that
several circuits have suggested that a district court should also con-
sider the length of delay in deciding whether recertification is proper.
See, e.g., Marisol, 104 F.3d at 528. We do not view length of delay
as a separate factor for consideration. Instead, length of delay simply
bears on the matters of excusable neglect and prejudice.

In this case DHEC has not shown excusable neglect. DHEC’s
counsel was simply unaware of the requirement of filing a timely
application to the court of appeals. The district court thus abused its
discretion in recertifying the question of the denial of DHEC’s motion
to dismiss the complaint. As a result, we deny DHEC’s application
for permission to appeal the dismissal question.

VI.

The Official Committee of Unsecured Creditors of Safety-Kleen
appeals the district court’s denial of its motion to intervene. The Offi-
cial Committee sought to intervene as a matter of right under Fed. R.
32 SAFETY-KLEEN, INC. v. WYCHE
Civ. P. 24(a). Alternatively, the Committee sought permissive inter-
vention under Rule 24(b)(2). Only DHEC opposed the Committee’s
motion. The district court denied the motion to intervene without any
reasoning or explanation. Our review is for an abuse of discretion. See
Hazardous Waste Treatment Council v. South Carolina (In re Sierra
Club), 945 F.2d 776, 779 (4th Cir. 1991).

Rule 24(a)(2) requires a district court to allow an applicant to inter-
vene if its application is timely and if it "claims an interest relating
to the property or transaction which is the subject of the action and
the applicant is so situated that the disposition of the action may as
a practical matter impair or impede the applicant’s ability to protect
that interest, unless the applicant’s interest is adequately represented
by existing parties." Fed. R. Civ. P. 24(a)(2). The Official Committee
represents Safety Kleen’s unsecured creditors, and these creditors
have $750 million in claims against Safety-Kleen. The Official Com-
mittee argues that its group’s substantial outstanding claims give it an
interest in the case and that no existing party will adequately protect
the interest of its group. In the alternative, the Official Committee
seeks to intervene under Fed. R. Civ. P. 24(b). Rule 24(b)(2) allows
the district court to permit an applicant to intervene "when an appli-
cant’s claim . . . and the main action have a question of law or fact
in common." Fed. R. Civ. P. 24(b)(2). At oral argument DHEC’s
counsel could not offer anything to refute the Official Committee’s
argument that it was entitled to intervene to represent the interests of
the unsecured creditors. In light of the fact that neither the district
court nor DHEC have articulated any reason for not allowing the
Official Committee to intervene, we conclude that the court abused
its discretion in not permitting the Committee to intervene. We
emphasize, however, that our decision on the intervention issue is
limited to the particular circumstances of this case.

VII.

In conclusion, we (1) affirm the determination that Rooker-
Feldman does not bar Safety-Kleen’s action; (2) affirm the denial of
Safety-Kleen’s motion for a preliminary injunction; (3) reverse the
determination that the automatic stay bars DHEC’s efforts to enforce
the financial assurance requirements in South Carolina’s environmen-
tal regulations; (4) dismiss DHEC’s interlocutory appeal from the
 SAFETY-KLEEN, INC. v. WYCHE 33
order denying its motion to dismiss the complaint; and (6) reverse the
order denying the Official Committee’s motion to intervene.

AFFIRMED IN PART, REVERSED IN
PART, AND DISMISSED IN PART

WIDENER, Circuit Judge, Concurring:

While I share the extent of Judge Luttig’s dissatisfaction with our
circuit’s Blackwelder decision and cases following, even if my rea-
soning may not be exactly the same as Judge Luttig’s, I believe that
Judge Michael’s majority opinion correctly relates circuit precedent
and affirm my concurrence in that opinion. I am confident that our
court en banc will consider the matter as circumstances require.

LUTTIG, Circuit Judge, concurring:

I concur in all but Part III.A of the majority’s opinion. I do not con-
cur in that part of the court’s opinion because I have long believed
that our decisions in both Blackwelder Furniture Co. v. Seilig Mfg.
Co., 550 F.2d 189 (4th Cir. 1977), and Rum Creek Coal Sales, Inc.
v. Caperton, 926 F.2d 353 (4th Cir. 1991), contravene Supreme Court
precedents by overvaluing the inquiry into the relative equities of
granting and denying a requested injunction to an extent that essen-
tially denies any value whatsoever to the inquiry into the likelihood
of success on the merits. Indeed, I believe that these opinions virtually
eliminate altogether the inquiry into the likelihood of success on the
merits — in doctrine, though, as I explain below, no longer in practice
— through their holdings that the balance of equities is largely deter-
minative of the appropriateness of an injunction and that if there is a
decided tip of the balance of equities in favor of the plaintiff, then the
injunction should be granted upon a showing merely that the issues
presented are "fair ground for litigation."

The Supreme Court has consistently applied the four-part test gov-
erning the decision on an injunction (the plaintiff’s likelihood of suc-
cess on the merits, the harm to the plaintiff in the absence of the
injunction, the harm to the defendant upon grant of the injunction, and
public interest) without ever distinguishing among the four parts as to
34 SAFETY-KLEEN, INC. v. WYCHE
analytical order, priority, or weight. And it has collectively referred
to these undifferentiated parts as "the traditional standard" for injunc-
tions. See Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975).

The Supreme Court has never held that the hardships of the plain-
tiff and the defendant should be weighed first, before any inquiry into
the likelihood of success on the merits is undertaken. But see Black-
welder, 550 F.2d at 195 ("[T]he first step in a Rule 65(a) situation is
for the court to balance the ‘likelihood’ of harm to the plaintiff against
the ‘likelihood’ of harm to the defendant.").

The Court has never held that the relative hardships are, together,
the two principal inquiries of the four. But see Blackwelder, 550 F.2d
at 196 ("The two more important factors are those of probable irrepa-
rable injury to the plaintiff without a decree and of likely harm to the
defendant with a decree.").

It has never held, or even suggested, that the four inquiries are ana-
lytically interrelated. But see Blackwelder, 550 F.2d at 196 ("[A]ll
four [questions] are intertwined and each affects in degree all the oth-
ers.").

It has never held that the importance of the likelihood of success
factor varies depending upon the magnitude of the difference between
the harm that will be suffered by the plaintiff in the absence of the
injunction and the harm that the defendant will suffer if the injunction
is granted. But see Blackwelder, 550 F.2d at 195 ("[t]he importance
of probability of success increases as the probability of irreparable
harm diminishes"); id. (explaining that it is only when the relative
harms are in "equipoise" that "the probability of success begins to
assume real significance")(quoting with approval West Virginia Con-
servancy v. Island Creek Coal Co., 441 F.2d 232, 235 (4th Cir.
1971)).

The Supreme Court has never held, under any circumstance, that
it is sufficient for issuance of an injunction that the plaintiff not have
engaged in frivolous litigation. But see Blackwelder, 550 F.2d at 195-
96 (explaining that if the plaintiff’s need for protection outweighs that
of the defendant, it "is enough" for issuance of the injunction that the
 SAFETY-KLEEN, INC. v. WYCHE 35
plaintiff "has not embarked on frivolous litigation") (quoting West
Virginia Conservancy, 441 F.2d at 235).

The Court has never even held that, if the balance of hardships
strongly favors the plaintiff, then the injunction should ordinarily be
granted, provided the questions presented are fair ones for litigation.
But see Blackwelder, 550 F.2d at 195 (holding that "if a decided
imbalance of hardship should appear in plaintiff’s favor," it will ordi-
narily be enough that the plaintiff has raised questions going to the
merit of the dispute that are so "serious, substantial, difficult and
doubtful as to make them fair ground for litigation") (quoting Hamil-
ton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir.
1953)); but compare Blackwelder, 550 F.2d at 195, with Ohio Oil Co.
v. Conway, 279 U.S. 813 (1929) (noting only that "[w]here the ques-
tions presented by an application for an interlocutory injunction are
grave, and the injury to the moving party will be certain and irrepara-
ble, if the application be denied . . . while if the injunction be granted
the injury to the opposing party . . . will be inconsiderable, . . . the
injunction usually will be granted") (emphasis added)).

Much less has the Supreme Court ever held that if the balance of
hardships tips in favor of the plaintiff — even decidedly — that the
likelihood of success test is entirely displaced by some other formula-
tion. But see Blackwelder, 550 F.2d at 195 (holding that "if a decided
imbalance of hardship should appear in plaintiff’s favor, then the
likelihood-of-success test is displaced by Judge Jerome Frank’s
famous formulation. . . .").

And the Court most certainly has never held that if the hardship
balance tips in favor of the plaintiff, then no showing whatsoever of
the likelihood of success is required. But see Blackwelder, 550 F.2d
at 196 (holding that if the balance of hardships "is struck in favor of
plaintiff," then the plaintiff "need not show a likelihood of success"
on the merits, provided that a "serious" question is presented).

To the contrary of all of the above, barely a year and a half before
this court decided Blackwelder, the Supreme Court — in an opinion
nowhere even cited or referenced in our Blackwelder decision — dis-
cussed and applied the applicable four-factor test, precisely as had the
district court whose opinion we criticized and whose judgment we
36 SAFETY-KLEEN, INC. v. WYCHE
reversed in Blackwelder; did not distinguish among any of the four
factors as to their order of consideration, hierarchy of importance, or
comparative weights; characterized this four-factor test as the "tradi-
tional" standard governing injunctions; and unmistakably required
that the plaintiff show a likelihood of success on the merits in order
to prevail. Said the Court, in clear and unequivocal terms:

The traditional standard for granting a preliminary injunc-
tion requires the plaintiff to show that in the absence of its
issuance he will suffer irreparable injury and also that he is
likely to prevail on the merits.

Doran v. Salem Inn, Inc., 422 U.S. at 931; id. at 932 ("The other
inquiry relevant to preliminary relief is whether respondents made a
sufficient showing of the likelihood of ultimate success on the mer-
its.").

And Doran was a full, authored opinion for the entire Supreme
Court, written by no less a figure than the present Chief Justice of the
United States. This, in stark contrast to the opinion that was little
more than the presumptive authority for the standard we adopted in
Blackwelder.* That authority, Ohio Oil Co. v. Conway, 279 U.S. 813,
was a single-page, per curiam opinion, in a case in which the Court
acknowledged that a determination of the likelihood of success on the
merits was impossible because the motion for injunction was submit-
ted on the basis of ex parte affidavits which were in conflict as to the
material facts. Tellingly, the Supreme Court itself has cited Ohio Oil
Co. only a handful of times in the three-quarters of a century since
its decision, and it has not done so at all since 1945, over half a cen-
tury ago.

I believe that we are complacent about, if we did not also adopt,
our Circuit’s total inversion of the correct injunction standard,
because of its comparative ease of application (ease, that is, as com-
pared to the more intellectually rigorous and demanding inquiry into

*See Blackwelder, 550 F.2d at 194 (surmising that Sinclair Refining
Co. v. Midland Oil Co., 55 F.2d 42 (4th Cir. 1932), which we said
announced the correct standard in the Fourth Circuit, "was doubtless
derived from Ohio Oil Co. v. Conway, 279 U.S. 813 (1929)").
 SAFETY-KLEEN, INC. v. WYCHE 37
the legal merits of the claims) and the refuge from accountability that
it provides us as judges, as a consequence of the fact that we can
never be proven wrong in our "balancing" of prospective harms.

Who doubts, for instance, the ease with which we can lean back in
our high-back chairs and speculate as to the "harms" that might befall
one or the other of the parties, or the public generally, depending
upon whether we award or withhold the requested injunction; or the
contrast of that ease with the genuine effort required to research and
actually read the governing law under the constraints of time, and
then methodically apply that law to the often-complicated facts that
are presented by injunction requests? By the same token, who would
seriously dispute that, whereas the likelihood that a party will succeed
on the merits of its claim is objectively ascertainable, and therefore
meaningfully reviewable, through the application of neutral principles
of reported law to the particular facts of the case, one’s subjective
evaluation of the relative harms that might be suffered, and the poli-
cies that will be advanced and impeded, as a result of granting or
denying an injunction, can scarcely be subjected to any such scrutiny?
How can it be proved that another’s view of the equities, or of the
policy implications, is more correct than mine? It cannot be.

Even if reasons were relevant to such a departure from clear
Supreme Court precedent (which, of course, they are not), these rea-
sons of ease and of defeat of accountability should be discomforting
to those who believe that the judiciary, before all others, should be
both intellectually rigorous and fully accountable to the public we
serve. For at the end of the day, other than conscience, it is only ana-
lytical rigor, and the accountability that such renders possible, that
can restrain a judiciary that serves for life and at the pleasure of no
one. Of course, that the intellectual scrupulousness of conventional
jurisprudence (i.e., the painstaking determination of law from prece-
dent and the meticulous application of that law to the particular facts
of the litigation), and the resulting accountability, does serve as a bri-
dle upon the courts is, together with the fact that it demands more of
the intellect, precisely why this scrupulousness has been eschewed in
many quarters in favor of the intellectually lazier and jurisprudentially
misbegotten enterprise of decision by personal policy preference.

The saving grace that I find for our bald departure from the stan-
dard repeatedly articulated by the Supreme Court is that our fealty to
38 SAFETY-KLEEN, INC. v. WYCHE
Blackwelder and Rum Creek Coal has been, at least in recent years,
more rhetorical than real, as we have hewed closer and closer to the
Supreme Court standard. And even that rhetorical allegiance has
noticeably been on the wane. In actual practice, even though not in
formal doctrine, we have virtually without exception insisted upon a
showing by the plaintiff of the likelihood of success on the merits of
his claim before we have either entered an injunction in the trial court
or affirmed the trial court’s entry of an injunction on appeal — and
we have required this showing not merely at the threshold but also
regardless of whether the balance of harms decidedly favored the
plaintiff. Relatedly, we have all but abandoned the instruction that the
balancing of harms is the preeminent of the injunction inquiries. And
for their part, and to their credit, litigants have not dared to argue their
causes even principally, much less alone, on the strength of the equi-
ties at stake, whatever they were.

We have returned to the proper standard out of wise recognition
that we departed from that standard in Blackwelder and Rum Creek
Coal at our peril, and that the Supreme Court was not likely to long
tolerate our defiance. That we have done so is good. However, for the
integrity of the law and for the public respect that follows only integ-
rity, I believe that we should also reestablish the doctrinal symmetry
between our caselaw, on the one hand, and our practice and Supreme
Court precedent, on the other, that was jettisoned with our decisions
in Blackwelder and Rum Creek Coal. I do not believe that the instant
case presents the appropriate opportunity for this realignment, but I
would like to think that we would welcome such an opportunity
should one present itself.