Appellant, an Alabama city that has a long history of racial discrimination and that until recently had an all-white population, is covered by § 6 of the Voting Rights Act of 1966 (Act), and accordingly must seek preclearance before instituting any change in a standard, practice, or procedure affecting voting. Appellant sought approval by the Attorney General for the annexation of two parcels of land, one vacant (hereinafter called the Western Addition) and the other (Glasgow Addition) added at the request of its inhabitants, an extended white family who wished their children to attend appellant's then all-white school system. The Attorney General objected to the annexations, finding with respect to the Western Addition that appellant's refusal to annex an adjacent black neighborhood (Highlands) was indicative of an intent to annex only white areas. Pursuant to § 5 of the Act, appellant then filed this declaratory action in the United States District Court for the District of Columbia, which denied relief, finding that the Western Addition's location and appellant's plans for relatively expensive housing there indicated that it was likely to be developed for use by white persons only. The court further found that appellant failed to carry its burden of proving that the annexations at issue did not have the purpose of abridging or denying the right to vote on account of race.
1. Fundamental principles of the Act, governing this case, are that an annexation of inhabited land constitutes a change in voting practice or procedure subject to preclearance under § 5, and even the annexation of vacant land on which residential development is anticipated must be precleared before those moving into the area may vote in the annexing jurisdiction. Moreover, Congress intended that a voting practice not be precleared unless both discriminatory purpose and effect are absent, and the burden of proving absence of discriminatory purpose and effect is on the covered jurisdiction. Pp. 479 U. S. 467-469.
while annexing other areas was racially motivated, rather than, as appellant asserted, based upon economic considerations. The court's findings, both as to the purpose of not annexing the Highlands and with respect to the weight of the evidence regarding the purpose of the two annexations at issue, are findings of fact that must be accepted unless clearly erroneous, and appellant has not established that they are clearly erroneous. Appellant's argument that, even if its decision not to annex the Highlands was racially motivated, such decision was not a change respecting voting, and hence was not subject to § 5, is correct, but not dispositive. The failure to annex black areas while simultaneously annexing nonblack areas is highly significant in demonstrating that appellant's annexations were purposefully designed to perpetuate it as an enlarged enclave of white voters. Moreover, the contention that, since appellant had no black voters at the time of the annexations, they could not have caused an impermissible effect on black voting, and thus it cannot be concluded that appellant had a discriminatory purpose, is based on the incorrect assumption that an impermissible purpose under § 5 can relate only to present circumstances. Section 5 looks not only to the present effects of changes, but to their future effects as well, and, likewise, an impermissible purpose under § 5 may relate to anticipated as well as present circumstances. Pp. 479 U. S. 469-472.
WHITE, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, STEVENS, and SCALIA, JJ., joined. POWELL, J., filed a dissenting opinion, in which REHNQUIST, C.J., and O'CONNOR, J., joined, post, 479 U. S. 472.
Appellant, Pleasant Grove, a city in Alabama that until recently had an all-white population, is covered by § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U.S.C. § 1973c, and accordingly must seek preclearance before instituting any change in a standard, practice, or procedure affecting voting. [Footnote 1] Appellant unsuccessfully sought preclearance by the Attorney General for the annexation of two parcels of land, one vacant and the other inhabited by a few whites. Appellant also failed to convince a three-judge District Court that the annexations did not have the purpose of abridging or denying the right to vote on account of race. We noted probable jurisdiction, 476 U.S. 1113 (1986), and now affirm.
Appellant, whose population numbers approximately 7,000, was described by the District Court as "an all-white enclave in an otherwise racially mixed area of Alabama." [Footnote 2] 568 F.Supp. 1455, 1456 (DC 1983). The city has a long history of racial discrimination. The District Court's opinions chronicle the city's past discriminatory practices in some detail, and we will not repeat that history fully here. See 623 F.Supp. 782, 787-788 (DC 1985); 568 F.Supp. at 1456-1457. Suffice it to say that, in housing, zoning, hiring, and school policies, appellant's officials have shown unambiguous opposition to racial integration, both before and after the passage of the federal civil rights laws.
The Western Addition is uninhabited, but the District Court found that "its location and the City's plans [for relatively expensive housing] indicate that it is likely to be developed for use by white persons only." 623 F.Supp. at 784, n. 5.
While approval of the Western Annexation was pending before the Alabama Legislature, appellant's City Council voted to withdraw fire and paramedic services that appellant was providing without charge to an adjacent black neighborhood known as Pleasant Grove Highlands (Highlands). In response, inhabitants of the Highlands, which has housing comparable to that in Pleasant Grove, petitioned for annexation to the city. The City Council restored free fire protection, but did not otherwise act on the petition. [Footnote 4] App. 18-19.
"a community may not annex adjacent white areas while applying a wholly different standard to black areas and failing to annex them based on that discriminatory standard."
568 F.Supp. at 1460. In its subsequent decision on the merits, the court, with one judge dissenting, denied declaratory relief, holding that the city had failed to carry its burden of proving that the two annexations at issue did not have the purpose of abridging or denying the right to vote on account of race. [Footnote 7] This appeal followed.
Before addressing appellant's arguments, we find it useful to review two fundamental principles of the Voting Rights Act.
U.S. 544 (1969), that Congress intended the preclearance provisions of the Voting Rights Act to be given "the broadest possible scope," id. at 393 U. S. 567, and to reach "any state enactment which alter[s] the election law of a covered State in even a minor way," id. at 393 U. S. 566. Allowing a State to circumvent the preclearance requirement for annexations by annexing vacant land intended for white developments would disserve Congress' intent to reach "the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race." Id. at 393 U. S. 565. Moreover, the Attorney General, whose interpretation of the Voting Rights Act is entitled to considerable deference, see, e.g., United States v. Sheffield Board of Comm'rs, 435 U. S. 110, 435 U. S. 131 (1978), has consistently interpreted § 5 to reach the annexation of vacant land intended for residential development. [Footnote 8] Finally, Congress was aware of the Attorney General's view in this regard, and implicitly approved it when it reenacted the Voting Rights Act in 1982. [Footnote 9] Cf. id. at 435 U. S. 131-135.
Second. "Congress plainly intended that a voting practice not be precleared unless both discriminatory purpose and effect are absent." City of Rome, supra, at 446 U. S. 172 (emphasis in original). See also e.g., City of Richmond, supra, at 422 U. S. 378. The burden of proving absence of discriminatory purpose and effect is on appellant. See, e.g., City of Rome, supra, at 446 U. S. 183, n. 18.
The city does not claim that either of the two annexations was not a change in voting practices subject to preclearance under § 5, even though the Western Addition was at the time uninhabited. [Footnote 10] Neither does it disagree that it must prove that the two annexations had neither the discriminatory purpose nor effect prohibited by § 5 of the Act. Its challenge is to the District Court's conclusion that the city had not carried its burden of showing that the annexations were untainted by a racially discriminatory purpose. In arriving at this judgment, the District Court relied on a variety of evidence, principally its finding that the refusal to annex the Highlands while annexing other areas was racially motivated. These findings, both as to the purpose of not annexing the Highlands and with respect to the weight of the evidence regarding the purpose of the two annexations at issue, are findings of fact that we must accept unless clearly erroneous. The city has not convinced us that they are.
Appellant insists, as it did below, that its failure to annex the Highlands was not racially motivated, but based upon economic considerations. The District Court found this justification "a mere pretext for race-biased annexation decisions." 623 F.Supp. at 784. The court found that appellant's economic argument was developed after the fact, and was not the true basis for the decision not to annex the Highlands. Id. at 784-785. Furthermore, the court found that appellant's argument did not reflect economic realities in a number of respects. For example, appellant's calculation of the costs of annexing the Highlands included the cost of services it was already providing gratis to that neighborhood. Id. at 786-787. Appellant also failed to consider that annexing the Highlands would generate immediate ad valorem taxes and possibly development fees from the construction of new homes. Id. at 786. At the same time, appellant's comparative estimate of the revenues that would be generated by the Western Addition failed to take into account such necessary costs as the construction of a new fire station, a major traffic artery, and a new neighborhood park. Id. at 787, n. 21. The District Court concluded that refusing to annex the Highlands was racially motivated.
"[T]he failure to annex [black] areas, while the city was simultaneously annexing non-black areas, is highly significant in demonstrating that the city's annexation here was purposefully designed to perpetuate Pleasant Grove as an enlarged enclave of white voters."
Brief for United States 21, n. 12.
strength. [Footnote 12] Common sense teaches that appellant cannot indefinitely stave off the influx of black residents and voters -- indeed, the process of integration, long overdue, has already begun. See supra at 479 U. S. 465, n. 2. One means of thwarting this process is to provide for the growth of a monolithic white voting block, thereby effectively diluting the black vote in advance. This is just as impermissible a purpose as the dilution of present black voting strength. Cf. City of Richmond, supra, at 422 U. S. 378. To hold otherwise would make appellant's extraordinary success in resisting integration thus far a shield for further resistance. Nothing could be further from the purposes of the Voting Rights Act.
In light of the record before us, we are not left with the definite and firm conviction that the District Court was mistaken either in finding that the refusal to annex the Highlands was racially motivated or that there was insufficient proof that the annexation of the Glasgow and Western Additions did not have a purpose forbidden by § 5. Those findings are not, therefore, clearly erroneous. Anderson v. Bessemer City, 470 U. S. 564 (1985).
"Whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the first sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964 . . . such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, . . . and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, or upon good cause shown, to facilitate an expedited approval within sixty days after such submission, the Attorney General has affirmatively indicated that such objection will not be made."
It is undisputed that appellant, being a subdivision of the State of Alabama, is covered by § 6. See 30 Fed. Reg. 9897 (1966).
At the time the District Court denied appellant's motion for summary judgment, the city had 32 black inhabitants, all of them residents of a nursing home. Because these persons were not registered to vote, and because city officials were apparently unaware of their existence at the time appellant made its latest annexation of land, the District Court treated appellant as all-white. 668 F.Supp. at 1456, n. 3. Appellant informs us that, in addition to the black residents of the nursing home, its inhabitants now include three black families, with two blacks registered to vote. Tr. of Oral Arg. 7. Two other black families have homes under construction within the city limits. Ibid.
Appellant's school system was subsequently found by a federal court to be an impermissible attempt to thwart the implementation of a unitary school system. Stout v. Jefferson County Board of Education, 448 F.2d 403 (CA5 1971). Appellant was ordered to provide bus transportation to the black children assigned to its schools, but declined to do so. Ultimately, the court abolished appellant's school system and transferred control of the schools back to Jefferson County. Stout v. Jefferson County Board of Education, 466 F.2d 1213 (CA5 1972), cert. denied sub nom. Board of Education of the City of Pleasant Grove v. Stout, 411 U.S. 930 (1973).
Appellant has since resumed free paramedic services to the Highlands, and has continued the provision of free police services. 623 F.Supp. 782, 785 (DC 1985).
At the same time that it terminated free fire and paramedic protection to the Highlands, the City Council also terminated such free services to the black Dolomite neighborhood, which likewise petitioned unsuccessfully for annexation. The District Court's opinion does not address in detail the decision not to annex the Dolomite area, and we shall not consider it separately.
"The Attorney General interposed a Section 5 objection to the annexation to Pleasant Grove of certain vacant land projected for all-white residential development because of the city's refusal to annex certain black areas."
Extension of the Voting Rights Act: Hearings before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 97th Cong., 1st Sess., 2567 (1982).
The complaint sought relief only with respect to the Western Addition, but the District Court, when it became aware that the Glasgow Addition had never been precleared, ordered appellant to amend the complaint to include that annexation as well. 568 F.Supp. at 1456, n. 1.
"would have had no difficulty in finding that the annexation policy of Pleasant Grove is, by design, racially discriminatory in violation of the Voting Rights Act."
623 F.Supp. at 788, n. 30.
"Certain annexations, such as those of vacant land designated for use as a public park, do not require Section 6 review. Because Section 6 is concerned only with voting practices and procedures, the Attorney General does not require submission for preclearance of annexations of uninhabited land before such annexations take place. Rather, the Attorney General requires covered jurisdictions to submit such annexations for preclearance before inhabitants on the annexed area may vote in the annexing jurisdiction."
Id. at 21, n. 12.
Indeed, in 1982 the Department apprised Congress of the Attorney General's decision not to preclear appellant's annexation of the Western Addition. See n. 6, supra. See also 128 Cong.Rec. 14297 (1982) (remarks of Sen. Helms) (criticizing Department of Justice decision not to preclear the annexation of an undeveloped subdivision in Wilson, N.C.); S.Rep. No. 97-417, p. 10, and n. 21 (1982) (citing United States Commission on Civil Rights, The Voting Rights Act: Unfulfilled Goals 66, which in turn notes that the Department of Justice has denied preclearance to the annexations of undeveloped areas zoned for middle-income housing).
The dissent finds it "difficult to see how the Court justifies applying § 5 preclearance procedures at all" to the annexation of the Western Addition, because the annexation did not immediately enlarge the number of eligible voters. Post at 479 U. S. 477. It may be that Pleasant Grove could have delayed seeking preclearance for the Western Addition until that area had inhabitants desiring to vote, see n 8, supra, but it is understandable that the city chose to seek preclearance at an earlier juncture: developing a tract of land is an expensive proposition, and the marketability of the new homes may depend on assurances that buyers will be entitled to all the benefits of residency in the city -- including voting. The Attorney General's decision to permit Pleasant Grove to seek preclearance at the time it did accommodates the city's interests, and was surely not forbidden by § 5.
"[I]t may be asked how it could be forbidden by § 5 to have the purpose and intent of achieving only what is a perfectly legal result under that section, and why we need remand for further proceedings with respect to purpose alone. The answer is plain, and we need not labor it. An official action, whether an annexation or otherwise, taken for the purpose of discriminating against Negroes on account of their race, has no legitimacy at all under our Constitution or under the statute. . . . An annexation proved to be of this kind and not proved to have a justifiable basis is forbidden by § 6, whatever its actual effect may have been or may be."
Id. at 422 U. S. 378-379.
To the extent that there is any doubt on the subject, it should be remembered that appellant has the burden of proving the absence of discriminatory purpose respecting voting. See supra at 479 U. S. 469.
The Court today affirms the decision of the District Court, holding that a city can act with a purpose to "den[y] or abridg[e]" black voting rights, 42 U.S.C. § 1973c, even when the city's actions can have no present effect on the voting rights of any black individual and any future effect on black voting rights is purely speculative. Because the Court's finding of a violation of the Voting Rights Act is inconsistent with the language and purpose of the Act, I dissent.
"[Section] 5 was designed to cover changes having a potential for racial discrimination in voting, and such potential inheres in a change in the composition of the electorate affected by an annexation."
Id. at 400 U. S. 388-389 (emphasis added). See Port Arthur v. United States, 459 U. S. 159, 459 U. S. 161 (1982) ("Perkins . . . held that changes in the boundary lines of a city by annexations that enlarge the number of eligible voters are events covered by § 5") (emphasis added). Thus, this Court's decisions establish that preclearance under § 5 is required when -- and only when -- an annexation changes the previous "voting procedures" by altering the number or racial composition of the municipal voters.
"'[T]he purpose of § 5 has always been to insure that no voting procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the franchise.'"
proposed annexation "reduc[es] the relative political strength of the minority race in the enlarged city as compared with what it was before the annexation." City of Richmond v. United States, 422 U. S. 358, 422 U. S. 378 (1975). An annexation that dilutes the minority vote "is not a statutory violation as long as the post-annexation electoral system fairly recognizes the minority's political potential." Ibid.
"An official action, whether an annexation or otherwise, taken for the purpose of discriminating against Negroes on account of their race, has no legitimacy at all under our Constitution or under the statute. Section 5 forbids voting changes taken with the purpose of denying the vote on the grounds of race or color. Congress surely has the power to prevent such gross racial slurs, the only point of which is 'to despoil colored citizens, and only colored citizens, of their theretofore enjoyed voting rights.' Gomillion v. Lightfoot, 364 U. S. 339, 364 U. S. 347 (1960)."
City of Richmond v. United States, supra, at 422 U. S. 378 (emphasis added). Thus, the previous decisions of this Court make explicitly clear that, for a city to have a discriminatory purpose within the meaning of the Voting Rights Act, it must intend its action to have a retrogressive effect on the voting rights of blacks. Lockhart v. United States, supra, at 460 U. S. 134.
to vote on account of race or color." 42 U.S.C. § 1973c. Because the actions challenged in this case could not have had any effect on minority voting rights, much less a retrogressive effect, it is clear that the city of Pleasant Grove could not have acted with such an intent respecting either of the annexations at issue in this case.
When the Glasgow Addition was annexed in 1969, it contained only one family of 12 white voters. Now, more than 15 years later, this 40-acre tract still contains only one family that currently numbers 20 white voters. Of course, one can say that the addition of a handful of white voters to a community of some 7,000 white residents "enlarge[d] the number of eligible voters." Port Arthur v. United States, supra, at 459 U. S. 161. The same could be said if an annexation added only one white voter. But a finding that either annexation was motivated by its anticipated effect on voting rights is out of touch with reality. The "dilution" of any resident's voting rights from an annexation such as the Glasgow Addition -- 20 votes in a city of 7,000 residents -- could not constitute a retrogression in voting rights under the Act. No showing has been made -- and indeed none could be made -- that a change of this number of white voters over a 15-year period has had any effect on voting rights. Nor has the annexation in any way "change[d] . . . the composition of the electorate." Perkins v. Matthews, supra, at 400 U. S. 389. The city was composed solely of white voters before and after the annexation of the Glasgow Addition. The annexation therefore could not have had any effect whatsoever on minority voting rights, and the city could not have acted with a purpose to dilute the voting rights of black municipal voters.
purely hypothetical, an inference that the city acted with a motivation related to voting rights is unsupportable.
The Western Addition, annexed in 1979, is a parcel of vacant land. Its annexation did not and could not in any way "change . . . the composition of the electorate." Perkins v. Matthews, supra, at 400 U. S. 389. It did not even "enlarge the number of eligible voters." Port Arthur v. United States, 459 U.S. at 459 U. S. 161. Thus, it is difficult to see how the Court justifies applying § 5 preclearance procedures at all. But even if one assumes that the § 5 procedures apply, this annexation could not have been motivated by a discriminatory purpose proscribed by the Voting Rights Act. There is no basis for imputing an intent to deny or abridge the voting rights of blacks when a community of white citizens annexes completely vacant land. The annexation did not exclude or include a single voter in Pleasant Grove. Nor could the annexation have been intended to have a retrogressive effect on black voting rights when there were no black voters in the city, and no voters, white or black, in the Western Addition.
of this Court is to the contrary. The only possible relevance of the failure to annex is to the city's intent respecting the annexations that did occur. The desire of the city to annex a vacant parcel of land and a parcel inhabited by one white family, combined with the failure to annex black communities, is relevant -- if at all -- only if the motivation inferred fairly can be said to relate to voting. Even if the city desired to exclude persons from the city because of their race, the annexations at issue could not possibly deny, abridge, or in any way effect a retrogression in any black individual's municipal voting rights. The Court's holding that the city nevertheless intended to impair black voting rights is without justification.
As Judge MacKinnon noted in his dissent from the District Court's opinion: "There may, in fact, be actionable constitutional violations occurring in the City." 568 F.Supp. at 1462. But the possible existence of discriminatory intent and conduct unrelated to voting does not justify finding the city liable under the Voting Rights Act. We normally presume that state actors respect the guarantees of the Constitution, and we require an individual who alleges otherwise to prove the existence of purposeful discrimination. See Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 429 U. S. 265 (1977); Washington v. Davis, 426 U. S. 229, 426 U. S. 240 (1976). The Voting Rights Act shifts the burden of proof to the state actor to prove the absence of discriminatory purpose. This Court upheld this unusual intrusion by the Act on state sovereignty specifically because its procedures were rationally related to the Fifteenth Amendment's guarantee respecting the right to vote. South Carolina v. Katzenbach, 383 U. S. 301, 383 U. S. 325, 383 U. S. 337 (1966). This shift in the burden of proof is justified only when the challenged conduct relates to voting. Here, the Court finds the city's conduct in fact related to voting when such a relationship cannot rationally exist.
In sum, the Court's reading of the Voting Rights Act divorces the Act from its constitutional justification -- protecting voting rights -- and represents an extension of the Act beyond even its "broadest possible scope," Allen v. State Board of Elections, 393 U.S. at 393 U. S. 567. Accordingly, I dissent.
It is difficult even to hypothesize a situation in which the foreseeable effect on black voting rights from an addition of a 20-member white family would be anything more than de minimis. Where the hypothetical effect of an annexation cannot be to dilute black voting strength within the meaning of the Voting Rights Act, to impute such a purpose to the city is irrational.
At issue in City of Richmond was the proposed annexation by the city of 23 square miles of adjacent land. The pre-annexation population of the city was 202,359, of which 104,207 or 52% were black citizens. The annexation would have added 47,262 people to the city's population, of whom 1,557 were black. The post-annexation population of the city would have been 249,621, of which 105,764 or 42% would have been black. 422 U.S. at 422 U. S. 363. The proposed annexation thus would have significantly changed the composition of the municipal electorate and substantially reduced black voting strength within the city.
If we are to engage in speculation, an equally logical, if not more compelling, assumption is that the annexation of the Western Addition will increase the black voting strength in the city. The Western Addition is zoned to contain 700 residences. With the sale of each home, the possibility exists that a potential black voter will become a city resident. The same possibility exists with each sale of an existing home in Pleasant Grove. Logically, the increase that the annexation causes in the number of homes for sale should increase the probability that a black individual will buy one and become a municipal voter.
In 1971, the city denied the annexation request of an area including the historically all-black Woodward School. In 1979, the city denied the annexation requests of the all-black Pleasant Grove Highlands and the predominantly black Dolomite area.


(a) Adopt such rules and regulations, standards and procedures relative to hazardous waste management as may be necessary to protect the public health and environment and enable the secretary to carry out the purposes and provisions of this act.
(b) Report to the legislature on further assistance needed to administer the hazardous waste management program.
(c) Administer the hazardous waste management program pursuant to provisions of this act.
(d) Cooperate with appropriate federal, state, interstate and local units of government and with appropriate private organizations in carrying out the duties under this act.
(e) Develop a statewide hazardous waste management plan.
(f) Provide technical assistance, including the training of personnel, to industry, local units of government and the hazardous waste management industry to meet the requirements of this act.
(g) Initiate, conduct and support research, demonstration projects and investigations and coordinate all state agency research programs with applicable federal programs pertaining to hazardous waste management.
(h) Establish policies for effective hazardous waste management.
(i) Authorize issuance of such permits and orders, conduct inspections and collect samples or require information and copy records or data as may be necessary to implement the provisions of this act and the rules and regulations and standards adopted pursuant to this act.
(j) Conduct and contract for research and investigations in the overall area of hazardous waste storage, collection, transportation, treatment, recovery and disposal including, but not limited to, new and novel procedures.
(k) Adopt rules and regulations establishing criteria for identifying the characteristics of hazardous waste and for listing hazardous waste. The secretary shall prepare and keep current a listing of hazardous wastes and set of characteristics based on the rules and regulations adopted pursuant to this subsection. The listing shall identify, but need not be inclusive of, all the hazardous waste subject to the provisions of this act. The criteria for identification and listing shall be consistent with the criteria for identification and listing adopted by the administrator of the United States environmental protection agency under the authority vested in the administrator by the Resource Conservation and Recovery Act of 1976 (42 USC 6921) as amended by the Solid Waste Disposal Act of 1980 (P.L. 94-482, October 21, 1980), and as amended by the Hazardous and Solid Waste Act of 1984 (P.L. 98-616, November 8, 1984).
(l) Adopt rules and regulations establishing: (1) Appropriate measures for monitoring generators, transporters and facilities during operation, during closure and after closure of such facilities to insure compliance with the rules and regulations adopted under this act and any permit issued under this act; (2) procedures to suspend operation of such generators, transporters or facilities as may be required to protect the public health and safety or the environment; and (3) appropriate measures to insure that any use of a hazardous waste facility after closure will not endanger the public health or safety or the environment.
(m) Adopt rules and regulations establishing standards for hazardous waste generators including, but not limited to, notification of hazardous waste generation, reporting, recordkeeping, labeling, containerization, source separation, storage, manifests, monitoring, sampling and analysis and manner of filing notifications, reports and manifests.
(n) Adopt rules and regulations prescribing the form of the manifest and requiring such manifest to accompany any hazardous waste collected, transported, treated, recovered or disposed of, and prescribing the contents of the manifest which shall include, but not be limited to, the quantity and composition of the hazardous waste, generator, transporter, destination, facility and the manner of signing and filing of the manifest and for the maintenance of records.
(o) Adopt rules and regulations establishing standards for routes used for transporting hazardous waste within the state with the concurrence of the state corporation commission. Such standards shall be consistent with those of the United States department of transportation and the state corporation commission, with respect to transportation of hazardous materials. Motor vehicles which are used for the transportation of hazardous waste in accordance with this act shall be exempt from the requirements of K.S.A. 66-1,108 et seq., and amendments thereto, and any rules and regulations adopted thereunder pertaining to routes which shall be under the jurisdiction of the secretary as provided in this act including any rules and regulations adopted thereunder. Otherwise such motor vehicles shall be subject to the requirements of K.S.A. 66-1,108et seq., and amendments thereto, and any rules and regulations adopted thereunder.
(p) Adopt rules and regulations establishing standards for transporters of hazardous waste including, but not limited to, notification of hazardous waste transport, manifests, labeling, recordkeeping and the filing of reports.
(q) Adopt rules and regulations establishing standards and procedures to protect public health and the environment from any release of hazardous waste into the environment and to insure the prompt correction of any such release and damage resulting therefrom by the person transporting, handling or managing such hazardous waste.
(r) Adopt rules and regulations requiring that, for such period of time as the secretary shall specify, any assignment, sale, conveyance or transfer of all or any part of the real property upon which a hazardous waste facility is or has been located shall be subject to such terms and conditions as to the use of such property as the secretary shall specify to protect human health and the environment.
(s) Adopt rules and regulations establishing a permit system which includes standards for hazardous waste facilities and procedures for implementation of a permit system for the construction, alteration or operation of a hazardous waste facility including, but not limited to, content of applications, evidence of financial responsibility, existing hydrogeological characteristics, environmental assessment, training of personnel, maintenance of operations, qualifications of ownership, continuity of operation, public notification and participation and compliance with those standards established pursuant to subsection (t).
(t) Adopt rules and regulations establishing minimum standards for the design, location, construction, alteration, operation, termination, closing and long-term care of hazardous waste facilities, including, but not limited to, notification of hazardous waste treatment, storage or disposal, general facility standards, contingency plans, emergency procedures, manifest system, recordkeeping, inspections, monitoring, reporting, closure and postclosure plans and financial requirements. The operator of the facility shall be responsible for long-term care of the facility for 30 years after closure of the facility except that the secretary may modify the long-term care requirements for any facility when all hazardous waste is removed from the facility at closure. The secretary may extend the long-term care responsibility of any operator of a facility as the secretary may deem necessary to protect the public health and safety or the environment. Any person acquiring rights of possession or operation of any hazardous waste facility permitted by the secretary at any time after the facility has begun to accept waste and prior to the end of the required period of long-term care shall be subject to all of the requirements, terms and conditions of the permit for the facility including all requirements relating to long-term care of the facility. The sale or acquisition of a hazardous waste facility during the long-term care period shall be subject to the assignment of long-term care responsibilities as determined by the secretary.
(u) Adopt rules and regulations establishing a schedule of annual fees to be paid to the secretary by: (1) Persons owning or operating hazardous waste facilities; (2) hazardous waste transporters; or (3) hazardous waste generators producing or bringing into existence hazardous waste in Kansas. The fees shall be for monitoring facilities both during and after operation, for monitoring generators of hazardous waste in Kansas and for monitoring the transportation of hazardous wastes. The fees shall be sufficient to reimburse the cost of the state in performing these monitoring responsibilities. The fee established under this subsection for each hazardous waste facility shall not exceed $50,000 annually. In setting fees, the secretary may exempt those fees which would be payable by generators for hazardous waste which is treated to recover substantial amounts of either energy or materials from hazardous wastes. The secretary shall remit any moneys collected from such fees to the state treasurer in accordance with the provisions of K.S.A. 75-4215, and amendments thereto. Upon receipt of each such remittance, the state treasurer shall deposit the entire amount in the state treasury to the credit of the hazardous waste management fund created by K.S.A. 65-3491, and amendments thereto.
(v) (1) Adopt rules and regulations establishing a schedule of fees to be paid to the secretary by applicants for permits to construct, modify or operate a hazardous waste facility. The fees established under this subsection shall not exceed $175,000 for each application submitted. These fees shall be based upon resources required to review the application, the type of facility, quantity of waste processed, type of waste processed, degree of hazard and potential impact upon human health and environment.
(2) The secretary shall remit any money collected pursuant to this subsection to the state treasurer in accordance with the provisions of K.S.A. 75-4215, and amendments thereto. Upon receipt of each such remittance, the state treasurer shall deposit the entire amount in the state treasury to the credit of the hazardous waste management fund created by K.S.A. 65-3491, and amendments thereto.
(w) (1) Adopt rules and regulations establishing a schedule of fees to be paid to the secretary by off-site hazardous waste facilities at which hazardous waste is treated and off-site hazardous waste facilities at which hazardous waste is disposed and will remain after closure. In establishing fees, the secretary shall give consideration to the degree of hazard, energy content, quantity of waste, costs of treatment or disposal and estimated future receipts. Fees shall be in an amount not to exceed $.01 per pound of hazardous waste treated, or burned for energy or material recovery. In no event shall the fees established under this subsection exceed the following annual calendar year caps: $60,000 for a facility which burns hazardous waste for energy or material recovery only; $200,000 for a facility which burns hazardous waste for treatment or disposal only. Facilities which burn hazardous waste for: (A) Energy or material recovery; and (B) treatment or disposal shall be subject to a total facility cap of $200,000, which includes a separate cap of $60,000 for hazardous wastes which are burned for energy or material recovery. The secretary shall establish a differential fee schedule for hazardous wastes based upon waste characteristics which is consistently applied to all facilities which burn hazardous wastes. In all other cases, fees shall be in an amount not to exceed $.05 per pound of hazardous waste disposed.
(2) The secretary shall remit any money collected pursuant to this subsection to the state treasurer in accordance with the provisions of K.S.A. 75-4215, and amendments thereto. Upon receipt of each such remittance, the state treasurer shall deposit the entire amount in the state treasury to the credit of the hazardous waste management fund created by K.S.A. 65-3491, and amendments thereto, except that 25% of any such deposit shall be deposited to the credit of the hazardous waste collection fund created by K.S.A. 65-3460, and amendments thereto.
(x) Encourage, coordinate or participate in one or more waste exchange clearing houses for the purpose of promoting reuse and recycling of industrial wastes.
(y) Adopt rules and regulations establishing the criteria to specify when a change of principal owners or management of a hazardous waste facility occurs and under what circumstances and procedures a new permit shall be required to be issued to the transferees of a facility which was permitted to the transferor.
(z) Adopt rules and regulations concerning the generation, transportation, storage, blending, marketing, burning and types of hazardous waste for which any method, technique or process to recover energy will be considered hazardous waste treatment. Such rules and regulations should specify a minimum heat value of the waste so as to ensure that a legitimate energy recovery will occur and should consider other characteristics of the waste which are appropriate to ensure that such method, technique or process for energy recovery will not pose a threat to the public health or environment.
History: L. 1981, ch. 251, § 2; L. 1983, ch. 286, § 5; L. 1984, ch. 240, § 2; L. 1985, ch. 218, § 2; L. 1986, ch. 240, § 1; L. 1987, ch. 295, § 6; L. 1989, ch. 48, § 87; L. 1991, ch. 198, § 1; L. 1992, ch. 272, § 7; L. 1993, ch. 274, § 5; L. 1996, ch. 253, § 16; L. 1996, ch. 253, § 17; L. 1999, ch. 44, § 1; L. 2000, ch. 103, § 7; L. 2001, ch. 5, § 248; July 1.


1. Is Claimant entitled to permanent partial disability benefits as a result of his May 24, 2006 compensable work injury?
2. If yes, to what extent, if any, should Claimant’s permanent partial impairment be apportioned between his May 2006 work injury and his pre-existing condition?
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim. Judicial notice also is taken of relevant portions of the AMA Guides to the Evaluation of Permanent Impairment (5th ed.)(the “AMA Guides”).
3. Claimant has a varied work history. He has been a mason tender, a self-employed wood worker, a commercial truck driver, a parking garage superintendent and a microchip tester. At the time of the injury at issue here, he was employed part-time by Defendant as a newspaper delivery driver.
4. Claimant has a long and complicated history of low back injuries, surgeries and pain. His problems began in 1982, when he herniated his L4-5 disc while lifting a car at home. Claimant underwent an L4-5 laminectomy, after which he recovered well.
5. In 1989 Claimant suffered a work-related low back injury while employed for Casella Waste Management. Claimant treated conservatively for this injury, and his claim for workers’ compensation benefits was accepted. Claimant recalled being out of work for six to eight months, during which time he received temporary total disability benefits.
6. Claimant does not recall receiving any permanent partial disability benefits relating to his 1989 work injury. The Department’s computer record reflects that an Agreement for Permanent Partial Disability Compensation was filed in July 1990, but does not specify how many weeks of benefits were awarded. Both the Department’s and the employer’s paper files relating to this injury have been destroyed, and therefore there is no way at this point to verify what, if anything, was paid.
7. In late 1995 and early 1996 Claimant suffered two slip-and-falls on the ice, neither work-related, as a result of which his low back pain worsened and became chronic. In 1997 Claimant underwent surgery to implant a dorsal column stimulator; complications ensued and the device was removed and re-implanted in 1998, then ultimately removed permanently in 2000.
8. Also in 1997 Claimant was found entitled to Social Security Disability Insurance (SSDI) benefits because of his chronic disabling low back pain. There have been periods since then during which Claimant was able to work part-time (and a one-year stint of full-time employment as well), but he has never been pain-free. Claimant has been prescribed narcotic pain medications regularly since the mid-1990’s as treatment for his chronic pain.
9. In 2005 Claimant underwent a surgical fusion at L5-S1. Following this surgery, Claimant felt much improved. Although still not pain-free, his low back pain moderated somewhat, and the symptoms he had been experiencing in his legs abated significantly. Despite these improvements, however, Claimant continued to receive SSDI benefits and worked only part-time. He also continued to use narcotic medications for chronic pain relief.
10. Claimant began working part-time for Defendant in April 2006. On May 24, 2006 he was involved in an accident while delivering papers when he was pinned by a forklift against the rear door of his truck. Claimant’s back hurt, and he left work early that day, but he did not immediately seek medical treatment. In fact, because he had promised to cover a co-employee’s vacation time in June, he continued to work until July 31, 2006. Claimant has not worked since.
11. Claimant testified that his low back pain is much worse since the May 2006 incident than it was at any time beforehand. It is unclear why this is so. Claimant’s current treating neurosurgeon, Dr. Jewell, has hypothesized that the forklift accident caused the nerves in the area of Claimant’s previous L5-S1 fusion to become stretched, but acknowledged that this was only a “guess,” unsupported by any scientific evidence, case reports or experience.
12. Claimant has consulted with both orthopedic and neurosurgeons as to whether there might be a surgical remedy for his chronic pain, but none have endorsed this approach with any conviction. He continues to use narcotic medications for pain control. According to a functional capacities evaluation completed in March 2008, he has no current work capacity.
13. Claimant has undergone two independent medical evaluations – one with Dr. White, at his own attorney’s referral, and one with Dr. Boucher, at Defendant’s request. Although neither expert has been able to explain the anatomical basis for Claimant’s increased symptoms, both agree that his current complaints are causally related to the forklift incident. Both also agree that Claimant has reached an end medical result. The dispute between them centers on the appropriate permanency rating for Claimant’s condition. The analysis is complicated by the fact that Claimant has suffered prior injuries to his lumbar spine.
14. The AMA Guides provide two methods for calculating spinal impairment – the diagnosis-related estimate (DRE) method and the range-of-motion (ROM) method. The DRE method is generally favored, but in certain situations the Guides direct that the ROM method be used instead. Specifically, the Guides suggest that the ROM method be used “when there is multilevel involvement in the same spinal region,” AMA Guides §15.2, paragraph 2 at p. 380, or “where there is recurrent injury in the same spinal region,” Id. at paragraph 4.
15. Dr. White determined that both of these exceptions applied to Claimant’s case – the first because he had suffered prior injuries at both L4-5 and L5-S1, and the second because the forklift incident had caused a repeat injury at the latter level. For those reasons, he applied the ROM method and concluded that Claimant now has a 26% whole person permanent impairment.
Ideally, use the same method to compare the individual’s prior and present conditions. If the ROM method has been used previously, it must be used again. If the previous evaluation was based on the DRE method and the individual now is evaluated with the ROM method, and prior ROM measurements do not exist to calculate a ROM impairment rating, the previous DRE percent can be subtracted from the ROM ratings. Because there are two methods and complete data may not exist on an earlier assessment, the apportionment calculation may be a less than ideal estimate.
17. No data exists from which to calculate Claimant’s prior impairment using the ROM method. With reference to the paragraph quoted above, Dr. White used the DRE method to determine that Claimant had suffered a 20% whole person impairment referable to his prior fusion surgery. Subtracting this amount from the 26% total current impairment Dr. White had derived using the ROM method, he concluded that Claimant had incurred a 6% whole person impairment referable to the forklift incident.
18. Dr. Boucher found Dr. White’s methodology to be flawed. In particular, he objected to Dr. White’s use of both the DRE and ROM methods in the same analysis. Dr. Boucher used a different approach. Noting that there was no objective evidence that the condition of Claimant’s spine had changed at all as a result of the forklift incident, he concluded that the DRE method properly should be applied to determine the extent of Claimant’s current impairment, not the ROM method. According to Dr. Boucher, doing so offered the further advantage of allowing for both the current and the prior impairment to be calculated via the same methodology.
19. Claimant’s impairment rating under the DRE method is straightforward. Both before and after the forklift incident, his L5-S1 fusion places him in Category IV, a 20-23% whole person impairment. The forklift incident having had no impact on the appropriate diagnosis-related category, according to Dr. Boucher’s analysis that event caused no additional permanent impairment, and therefore there is nothing to apportion.
20. Both Dr. White and Dr. Boucher are well known to this Department as qualified experts. Both have substantial experience rating permanency in accordance with the AMA Guides. The fact that each used a different methodology to arrive at his impairment rating reflects their different interpretations of the same sections of the Guides.
21. With Dr. Boucher’s end medical result determination as support, Defendant terminated Claimant’s temporary disability benefits on April 28, 2008. Claimant’s compensation rate for permanent partial disability benefits as of that date was $186.76, updated to $194.23 as of July 1, 2008.
22. Claimant was 48 years old on April 28, 2008. According to Vermont’s Medicaid Manual, his remaining life expectancy as of that date was 28 years, or 336 months.
2. The dispute here centers on the extent, if any, of the permanent impairment Claimant suffered as a result of the forklift incident. Vermont’s workers’ compensation statute specifically designates the AMA Guides as the controlling authority for making such a determination. 21 V.S.A. §648(b). Unfortunately, however, the Guides are not always so clear as to be subject to only one interpretation, and well-qualified medical experts often disagree as to their application in particular circumstances.
3. Here, I find Dr. White’s interpretation of the relevant sections of the Guides to be more compelling than Dr. Boucher’s. I agree with his reading of the Guides as directing that the ROM method be used in situations where, as here, a patient has suffered a recurrent injury to the same spinal region.1 I accept as valid, therefore, his conclusion that Claimant’s current total impairment is 26% whole person, calculated in accordance with that method.
4. I also concur with Dr. White’s assessment that the Guides contemplate circumstances in which it is necessary to mix a ROM-based impairment calculation with a DRE-based one in order to make an appropriate determination as to apportionment. Claimant’s case presents one of those circumstances. I accept Dr. White’s assessment that the extent of Claimant’s impairment attributable to the forklift incident is 6%.
1 Of note, the use of the term “recurrent” in the context of the AMA Guides should not be interpreted to conflict in any way with both Dr. White’s and Dr. Boucher’s determination that Claimant suffered an “aggravation” as a result of the forklift incident. Both terms have legal meanings completely distinct from their medical usage. Rolfe v. Textron, Inc., Opinion No. 08-00WC (May 16, 2000).
5. What remains to be determined is whether apportionment is appropriate under the particular circumstances of this case. The AMA Guides specifically defer to state law on this issue. Kearney v. Addison-Rutland Supervisory Union, Opinion No. 21-09WC (June 24, 2000) (citing to §§1.6b, 2.5h and 15.2a of the AMA Guides); Langdell v. G.W. Savage Corp., Opinion No. 19-09WC (June 24, 2009) (same).
6. Vermont’s workers’ compensation statute requires apportionment in cases where a prior impairment has been both rated and paid. 21 V.S.A. §648(d). Absent those specific circumstances, the Commissioner retains discretion whether to apportion or not. Kearney, supra.
7. Although there is evidence in the current claim that Claimant’s prior impairment was rated, it is unclear whether anything was ever paid. The statute requires evidence of both a prior rating and prior payment in order for mandatory apportionment to be triggered. Langdell, supra. Thus, I conclude that the decision whether to allow apportionment here lies within my discretion, but is not required by the statute.
8. I am mindful of the remedial purpose of Vermont’s workers’ compensation statute, and the requirement that it be construed broadly in order to make injured workers “whole.” Hodgeman v. Jard Co., 157 Vt. 461, 464 (1991). Nevertheless, I am convinced that to award Claimant all of the permanency Dr. White has rated, with no apportionment at all for his many previous injuries, would be an abuse of discretion. The fact is Claimant’s prior spine injuries had caused him to be significantly disabled even before the forklift incident. He was receiving SSDI benefits, he was working only part-time and he was taking narcotic medications for chronic pain. These consequences did not result from the forklift incident; they were merely continued by it.
9. Claimant’s situation is distinguishable from that of the claimants in other recently decided apportionment claims. Kearney, supra; Murray v. Home Depot USA, Inc., Opinion No. 41-08WC (October 20, 2008); Kapusta v. State of Vermont Department of Health, Opinion No. 36-08WC (September 4, 2008). In each of those claims, the prior condition was no longer disabling and had resulted in few, if any, functional limitations at the time of the work injury. The difference between the circumstances of those claimants and the situation presented here is significant. Apportionment would have prevented those claimants from being made “whole.” Fairness dictates a different result in this case.
10. I conclude, therefore, that under the specific facts of this claim, it is appropriate to award Claimant only the permanency attributable to the forklift incident – 6% whole person according to Dr. White – and to apportion away that part of the total that is referable instead to his prior injuries.
11. Pursuant to 21 V.S.A. §652(c), Claimant is entitled to have these permanency benefits prorated over his life expectancy. In accordance with Finding of Fact No. 21 above, Claimant’s 6% permanency award totals $6,340.87. In accordance with Finding of Fact No. 22 above, and not including any reduction for attorney fees, Claimant’s permanency award is prorated at the rate of $18.87 per month for the remainder of his life expectancy.
12. Claimant has filed a request for costs totaling $3,247.22 and attorney fees totaling $5,175.00 (57.5 hours at the mandated rate of $90.00 per hour). An award of costs to a prevailing claimant is mandatory under the statute. Although Claimant has only partially prevailed, it is impossible under the circumstances to separate out those costs that relate only to his successful claim. See Abare v. Ben & Jerry’s, Opinion No. 44-08WC (November 5, 2008); Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003). I decline to do so, therefore, and instead I award Claimant all of the costs he has requested.
13. As for attorney fees, in cases where a claimant has only partially prevailed, the Commissioner typically exercises her discretion to award fees commensurate with the extent of the claimant’s success. I find it appropriate to award Claimant 25% of the fees he has requested, or $1,293.75.
3. Costs totaling $3,247.22 and attorney fees totaling $1,293.75.
DATED at Montpelier, Vermont this 29th day of July 2009.