Petition for Writ of Certiorari — Alabama Department of Environmental Management v. National Solid Wastes Management Ass'n

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90-1718) Ftr®®

MAY 7 1991

pick HELE CLERK

No. 90-___

IN THE

Suprene Court Of Che United States

OCTOBER TERM, 1990

THE ALABAMA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT; LEIGH PEGUES, Director of the Alabama

Department of Environmental Management; and

GUY HUNT, Governor of Alabama,

Petitioners

NATIONAL SOLID WASTES MANAGEMENT

ASSOCIATION; and CHEMICAL WASTE

MANAGEMENT, INC.,

Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

Of Counsel:

Ronald W. Farley *Bert S. Nettles

Alabama Dept. of Envir. Man. Alton B. Parker, Jr.

1701 Cong. W.L. Dickinson Dr. —_J. Mark Hart

Montgomery, AL 36130 Kenneth O. Simon

H. William Wasden SPAIN, GILLON, GROOMS,

= : BLAN & NETTLES

gal Advisor to the Governor

. 2117 2nd Avenue North

11 South Union St. gl re

Montgomery, AL 36130 Birmingham, AL 35203

(205) 328-4100

William D. Little ;

Assistant Attorney General a

Sain ait Aieienene Altorneys for Petitioners

11 South Union St.

Montgomery, AL 36130 *Counsel of Record

QUESTIONS PRESENTED

1. Whether Alabama has legitimate reasons to treat hazard-

ous waste from some 22 states (which have no hazardous waste

treatment or disposal facilities, or efforts underway to develop

same) differently from those states with such facilities. [See

Maine v. Taylor, 477 U.S. 131, 152 (1986) }.

2. Whether the Commerce Clause elevates the free flow of

interstate hazardous waste above Alabama’s right to enact rea-

sonable and conditional restrictions on interstate hazardous

waste to protect the health and safety of its citizens and the

integrity of its environment.

3. Whether the Court of Appeals erred in holding that the

decision in City of Philadelphia v. New Jersey, 437 U.S. 617 (1978)

dealing with nondangerous solid waste (i.e., garbage) controls

this case dealing with dangerous hazardous waste.

4. Whether hazardous waste (consisting of over one hun-

dred different flammable, corrosive, poisonous or cancer-caus-

ing chemicals of a type that can blind, cripple, kill, defoliate

the environment, contaminate drinking water supplies, and

enter the food chain) is an object of commerce entitled to full

protection under the Commerce Clause.

STATEMENT OF INTERESTED PARTIES

All parties to this case in the court below are listed in the

caption.

TABLE OF CONTENTS

Page

PETITION FOR WRIT OF CERTIORARI ..............

OPINIONS AND ORDERS BELOW................... 2

eg aa esc hse es ie besessccvcces 2

CONSTITUTIONAL PROVISION INVOLVED ......... 2

aewememenenee GOP BOSE GARDE... .. 1... eee 5

A. Sareeemeens Or PE PACTS.................. 5

B. BASIS FOR FEDERAL JURISDICTION ........... 8

REASONS FOR GRANTING THE WRIT............... 8

ee GAs os 5 Ve bv ver eens veers 12

CITY OF PHILADELPHIA V. NEW JERSEY ........... . 16

OE EI ee eee 22

ee ccd ey Vnkicisy oases cece res vss A-]

OPINION BELOW, CIRCUIT COURT OF APPEALS .. A-]

(AUG. 8, 1990)

OPINION BELOW, MODIFICATION OF OPINION

ON REHEARING, CIRCUIT COURT OF

APPEALS (FEB. 7, 1991) ................--0---. A-23

. OPINION BELOW, DISTRICT COURT............. A-30

(JAN. 12, 1990)

Eos We ss ebb r ccs oeercevcsesccsvees A-57

TABLE OF AUTHORITIES

Cases:

Asbell v. Kansas, 209 U.S. 251 (1908) ..........

Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984)

Balduin v. G.AF. Seelig, 294 U.S. 511 (1935) ....

Bowman v. Chicago & Northwestern R. Co.,

Re Ferrer eee eee

Chemical Waste Management, inc. v.

Alabama Department of Revenue,

No. 90-1098-PH, Circuit Court of

Montgomery County, Alabama

Poe as eee

City of Philadelphia v. New Jersey,

og Ro ee rrr re

Dean Milk Co. v. Madison, 340 U.S. 349 (1951)...

Hunt v. Washington Apple Advertising Comm'n,

ge OD gs Pee ee re ree eee

Maine v. Taylor, 477 U.S. 131 (1986)...........

New Energy Co. v. Limbach, 486 U.S. 268 (1988) . .

Railroad Co. v. Husen, 95 U.S. 465 (1878) .......

Sligh v. Kirkwood, 237 U.S. 52 (1915)...........

State of Alabama v. United States EPA,

871 F.2d 1548 (11th Cir. 1989) .............

Constitutional Provisions:

Article I, § 8, cl. 3, United States Constitution. . .

.. 10, 12, 16,

18, 19, 20, 21

;

’

TABLE OF AUTHORITIES — (Continued)

Federal Statutes: Page

ee ere ee 2

28 U.S.C. § 1254(2) amended by Pub.

ee I os dow kwon vcs ow Glades océdeuwevs 9

a ae x dice us Se ideas unaenavece¥ucnonnns 8

en ee 13

ee oo ol nak y's ws bw eek ee 6 baud sd eed eed 20

Ee ee ea 2

State Statutes:

i nr i

Ala. Code § 22-30-11(b) (Supp. 1989) ............0.00... 3

Legislative History:

132 Cong. Rec. S 14924 (Oct. 3, 1986) ................... 10

“Review of Cases by the Supreme Court”

seouse Report 100-660 (1968) ....... 2.0... s ieee. 9

Law Reviews and Miscellaneous:

Delogu, “NIMBY” As a National Environmental

Problem, 35 S. Dak. L. Rev. 198 (1990) .............. 10, 21

“For the Record” Transcript, Vol. II, Doc. 28,

Thomas Nessmith, Chief, Policy Planning

and Evaluation, United States EPA eee

ee rs ces oe es tik ko SCS 10, 11

BNA Envt’l Rept. 1597 (Dec. 28, 1990) ................. 12

New York Times, March 11,1991 ...................... 12

No. 90-___

IN THE

Suprene Court Of Che United States

OCTOBER TERM, 1990

THE ALABAMA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT; LEIGH PEGUES, Director of the Alabama

Department of Environmental Management; and

GUY HUNT, Governor of Alabama,

Petitioners

NATIONAL SOLID WASTES MANAGEMENT

ASSOCIATION; and CHEMICAL WASTE

MANAGEMENT, INC.,

Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

The Alabama Department of Environmental Management

(ADEM); Leigh Pegues, Director of ADEM; and Guy Hunt,

Governor of the State of Alabama, respectfully petition for a

writ of certiorari to review the judgment of the United States

Court of Appeals for the Eleventh Circuit invalidating an Ala-

bama statute, Ala. Code § 22-30-11(b) (Supp. 1989), known as

the “Holley Bill.” The Holley Bill places conditional restric-

tions on the permanent burial of hazardous waste in Alabama

from some 22 states which have no hazardous waste treatment

or disposal facilities, or efforts under way to develop same.

The Court of Appeals held the statute is violative of the Com-

merce Clause of the Constitution.

OPINIONS AND ORDERS BELOW

The August 8, 1990 opinion of the United States Court of

Appeals for the Eleventh Circuit reversing a summary judg-

ment in favor of Petitioners is reported at 910 F.2d 713 and

reproduced in App. A, infra, A-1. That court’s opinion denying

the application for cehearing and modifying the opinion is

reported at 924 F.2d 1001 and reproduced in App. B, injra,

A-23. The District Court’s order granting Petitioners a sum-

mary judgment and memorandum opinion are reported at

729 F. Supp. 792 and are reproduced in App. C, infra, A-30.

JURISDICTION

The Eleventh Circuit issued its opinion on August 8, 1990,

and denied Petitioner’s application for rehearing on February

7, 1991. This petition is being filed within 90 days of the denial

of rehearing. This Court has jurisdiction over this case pursu-

ant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

1. Article I, § 8, cl. 3 of the United States Constitution pro-

vides: “The congress shall have power ... To regulate com-

»”

merce ... among the several states... .

2. The Superfund Amendments and Reauthorization Act

(SARA), 42 U.S.C. § 9604(c) (9), provides:

(9) Siting

Effective 3 years after October 17, 1986, the Presi-

dent shall not provide any remedial actions pursuant

to this section unless the State in which the release

occurs first enters into a contract or cooperative

agreement with the President providing assurances

deemed adequate by the President that the State will

assure the availability of hazardous waste treatment

or disposal facilities which —

(A) have adequate capacity for the destruction, treat-

ment, or secure disposition of all hazardous wastes

that are reasonably expected to be generated within

the State during the 20-year period following the

date of such contract or cooperative agreement and

to be disposed of, treated, or destroyed,

(B) are within the State or outside the State in accor-

dance with an interstate agreement or regional

agreement or authority,

(D) are in compliance with the requirements of Sub-

title C of the Solid Waste Disposal Act [42 U.S.C.A.

§ 6921 et seq. ]

3. The Holley Bill, Ala. Code § 22-30-11(b) (Supp. 1989)

(Ala. Acts 1989, No. 89-788) provides in pertinent part as fol-

lows (the full text of the act appears in App. D, infra, A-57):

(b) It is unlawful for any person who owns or oper-

ates a commercial hazardous waste treatment or dis-

posal facility within this state to dispose or treat any

hazardous wastes generated in any state outside the

State of Alabama which:

(i) Prohibits by law or regulation the treat-

ment or disposal of hazardous wastes within

that state and which has no facility permit-

ted or existing within the state for the treat-

ment or disposai of hazardous wastes; or

(ii) Has no facility permitted or existing

within that state for the treatment or dis-

posal of hazardous wastes; unless that state

has entered into an interstate or regional

agreement for the safe disposal of hazard-

Ous wastes pursuant to the federal Compre-

hensive Environmental Response, Compen-

sation, and Liability Act. The department

shall establish and maintain a list of states

from which hazardous wastes cannot be ac-

cepted for treatment or disposal pursuant

to this paragraph and there shall be no li-

ability under the paragraph for disposal of

wastes from a state until 15 days after a state

has been listed by the department. Such list

shall be publicly available and set forth the

reasons why each state is listed. The date on

which a state is included on such list shall

be provided. The list of states shall be re-

vised monthly. The state of generation as

shown on the hazardous waste manifest

shall be used in determining whether a per-

son has treated or disposed of waste in vio-

lation of this subsection, and any person

who alters the state of generation on any

manifest or misrepresents the state of gen-

eration of any hazardous waste for the pur-

pose of circumventing this statute shall be

punishable in accordance with section 22-

30-19 herein.

No. 89-788, no commercial hazardous waste treat-

ment or disposal facility operating in this state may

contract with states other than the State of Alabama

in order to satisfy the capacity assurance programs

required by 42 U.S.C. § 9604(c)(9) of the Compre-

hensive Environmental Response, Compensation,

and Liability Act, as amerded.

(d) For the purpose of this section, the following

additional terms are defined:

(1) AGREEMENT. Any interstate or re-

gional contract or agreement made pursu-

ant to capacity assurance requirements of

Section 42 U.S.C. § 9604(c)(9) of CERCLA

and which one of the signatories to such

contract or agreement is the State of Ala-

bama.

STATEMENT OF THE CASE

On October 4, 1989, the National Solid Waste Management

Association and Chemical Waste Management, Inc.

(“ChemWaste”), a trade association and the owner and opera-

tor of the largest hazardous waste disposal facility in the

United States located at Emelle, Alabama, respectively, filed

suit in the United States District Court for the Northern Dis-

trict of Alabama against the Alabama Department of Environ-

mental Management (ADEM); Leigh Pegues, Director of

ADEM; and Guy Hunt, Governor of the State of Alabama. The

suit sought declaratory and injunctive relief chailenging the

constitutionality of Ala. Code § 22-30-11(b), known as the

“Holley Bill”. App. A, at A-2, 910 F.2d 715.'

ChemWaste challenged the constitutionality of the statute

under the Commerce Clause. The District Court held the stat-

ute is constitutional and entered a final summary judgment in

favor of Petitioners. App. C, at A-55, 729 F. Supp. at 805.

The Court of Appeals reversed, holding the Holley Bill vio-

lates the Commerce Clause. App. A, at A-22, 910 F.2d at 725.

Petitioners timely filed a Suggestion for Rehearing In Banc

and Petition for Rehearing Before the Original Panel. On Feb-

ruary 7, 1991, the Eleventh Circuit panel denied the petition

for rehearing and modified part II-C of the original opinion.”

App. B, at A-29, 924 F.2d 1004.°

A. Statement of the Facts.

Before the Holley Bill became effective on September 14,

1989, ChemWaste accepted hazardous waste for treatment and

permanent burial at Emelle, Alabama from 48 states. Eighty-

five percent of the hazardous waste buried at Emelle was gen-

erated outside Alabama. App. A, at A-2, 910 F.2d at 715. The

'The ChemWaste attack on ADEM's pretreatment and preapproval regu-

lations is not an aspect of this petition.

*The modification is not pertinent to this petition.

*The Suggestion for Rehearing In Banc was denied on April 15, 1991.

District Court found that the quantities of hazardous waste

buried at Emelle had increased substantially in recent years:

from less than 200 million pounds in 1978 to 682 million

pounds in 1985. After 1985 the levels continued to rise to 912

million pounds in 1986, 1.13 billion pounds in 1987, 1.10 bil

lion pounds in 1988, and an estimated 1.6 billion pounds in

1989.* Emelle’s recent history, then, is one of accepting over a

billion pounds per year. App. C, at A-38, 729 F. Supp. at 797.

The District Court further found:

Shipments, which include more than 100 flammable,

corrosive, poisonous or cancer-causing chemicals .

are accepted [by ChemWaste at Emelle] from

America’s ten largest companies, 159 military bases

and other federal agencies, Alabama Power Company

in Birmingham, Reynolds Metals in Sheffield, Occi-

dental Chemical Corp. in Mobile, and 217 other cus-

tomers in Alabama. .. .

Id. at A-38-39, 729 F. Supp. at 797.

The District Court found that “many of the wastes can blind,

cripple or kill, ... defoliate the environment, contaminate

drinking water supplies and enter the food chain.” /d. at A-38

& n. 6, 729 F. Supp. at 797 & n. 6.

In enacting the Holley Bill, the Alabama legislature made

certain pertinent legislative findings:

(2) The State of Alabama has a responsibility to pro-

tect the public health, welfare, and safety of its citi-

zens by and through the enactment of laws designed

to protect and preserve the environment from the

health risks and endangerments associated with the

treatment and disposal of hazardous wastes;

‘That was approximately 17% of all hazardous wastes commercially

landfilled in the United States in 1989. Chemical Waste Management, Inc. v.

Alabama Department of Revenue, No. 90-1098-PH, Circuit Court of Montgom-

ery County, Alabama (Feb. 28, 1991), p. 8, now on appeal to the Supreme

Court of Alabama, Case No. 190-1043 and 190-1044.

(3) The United States Congress, recognizing the se-

rious health threats and risks posed by the treatment

and disposal of hazardous wastes to public health and

the environment, enacted the Comprehensive Envi-

ronmental Response, Compensation, and Liability

Act (“CERCLA”) . .. as amended, which requires that

each state demonstrate ... that is [sic] has adequate

capacity to treat, destroy, or secure disposition of all

hazardous wastes reasonably expected to be gener-

ated within the state over the next 20 years;

(8) The State of Alabama has, since 1978, accepted

for treatment and disposal, disproportionate

amounts of hazardous wastes generated within the

borders of other states which have not taken steps to

provide the assurance required by 42 U.S.C. [§}

9604(c) (9);

(9) The constant influx of the large volumes of haz

ardous wastes entering this state over and through

congested state, county, and municipal highways and

roads, coupled with the ever-increasing potential for

traffic accidents and mishaps involving hazardous

waste transporters, and the likelihood of leaks, spills,

and/or explosions of said hazardous wastes resulting

therefrom, altogether pose an unreasonable and _ un-

justifiable risk to the health, safety, and welfare of

Alabama’s citizens.

App. D, Ala. Acts 1989, No. 89-788, § 1 (1989).

The Holley Bill prohibits any operator of a commercial haz-

ardous waste treatment or disposal facility in Alabama from

disposing of or treating hazardous wastes generated in any

state that (1) prohibits the treatment or disposal of wastes

within that state and which has no facility within that state for

the treatment or disposal of hazardous wastes; or (2) has no

such facility and has not entered into an interstate or regional

agreement pursuant to CERCLA for the safe disposal of haz-

ardous wastes to which Alabama is a signatory. The legislation

directs ADEM to create a list of states, revised monthly, from

which hazardous wastes cannot be accepted.

B. Basis for Federal Jurisdiction.

The District Court had jurisdiction over this case pursuant

to 28 U.S.C. § 1331.

REASONS FOR GRANTING THE WRIT

This Court has never addressed a state’s power to enact

reasonable restrictions on the interstate movement of hazard-

ous waste to protect public health and the integrity of the

state’s natural resources. Similarly, this Court has never ad-

dressed whether hazardous waste is an article of commerce

entitled to full constitutional protection. Given the growing

recognition and concern in the last 12 to 15 years of the na-

tional hazardous waste problem, these issues are important

questions of Federal constitutional law which should be settled

by this Court.’ Also, until 1988 there was an automatic right of

‘Congress has found hazardous waste to be a significant national problem.

The significance is illustrated by the number of major pieces of federal

legislation regulating waste, and, more recently, specifically hazardous waste.

The District Court’s opinion contains an excellent review of the develop-

ment of federal waste management legislation over the past forty years. See

App. C, at A-30-31, 729 F. Supp. at 793-97. As to hazardous waste, Congress

in 1976 enacted the Resource Conservation and Recovery Act (RCRA), 42

U.S.C. §§ 6901-6987, which established a “cradle to grave” regulatory scheme

for hazardous waste. Also in 1976 Congress enacted the Toxic Substances

Control Act of 1976 (TSCA), Pub. L. 94469, which was a comprehensive

measure to protect the public and the environment from exposure to haz-

ardous chemicals. In 1980, Congress enacted the Comprehensive Environ-

mental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C.

§§ 9601-9675 (1982 & Supp. IV 1986), which provided for the clean-up of

hazardous waste sites and created Superfund, a federal fund for clean-up

when the responsible parties do not do so. In 1986 Congress amended

CERCLA by enacting the Superfund Amendments and Reauthorization Act

(SARA), Pub. L. 99-499, amending scattered sections of 42 U.S.C. §§ 9601-

appeal and review in a case such as this where a federal court

of appeals invalidated a state statute as repugnant to the con-

stitution. See former 28 U.S.C. § 1254(2) amended by Pub. L.

100-352, § 7 (1988). While there is no longer automatic re-

view, the justification for discretionary review presumably is

greater where a state statute raises a significant federyl ques-

tion of a character historically reviewed by this Court.® Fur-

ther, the important issues involved in this case have led the

Attorneys General of 13 states and the Texas Water Commis-

sion to give amicus support to the applicants in the court

below.’ The United States Department of Justice filed an

amicus brief in support of ChemWaste. Both sets of amicus

supporters participated in oral argument before the Court of

Appeals.

Following the Love Canal episode in New York State, Con-

gress has enacted several acts and made strong statements

about the seriousness of the problem. Seen. 5, supra at 8. The

Alabama Legislature in enacting the Holley Bill made explicit

legislative findings with respect to Alabama’s legitimate con-

cerns for the health, safety and welfare of Alabama’s citizens.

See, p. 6-7, supra.

9675 (Supp. IV 1986). SARA requires each state to demonstrate capacity to

dispose of its hazardous waste for the next twenty years by disposal in in-state

facilities or by regional or interstate agreements with other states which have

excess capacity. In 1984 Congress passed the Hazardous and Solid Waste

Amendments, Pub. L. 98-616, which established a comprehensive program

to regulate the land disposal of hazardous wastes.

“Indeed, the legislative history shows the section was repealed to “substan-

tially eliminate [] the mandatory or obligatory jurisdiction of the Supreme

Court... to hear and decide . . . cases [that] do not involve important issues of

Federal constitutional law.” “Review of Cases by the Supreme Court,” House

Report No. 100-600, at 766 (1988) (emphasis added). In contrast, this case

does present important issues of Federal constitutional law.

"Those states are Arkansas, Arizona, Illinois, Indiana, Louisiana, Nebraska,

Nevada, New Mexico, North Carolina, Ohio, South Carolina, Utah, and

Tennessee. The Texas Water Commission is the Texas state agency that was

involved in Alabama v. EPA, infra at page 17 and which has responsibility for

hazardous waste regulation in that state. The Sierra Club of Alabama also

filed an amicus brief in support of Petitioners.

The real significance of the threat posed to our industrial-

ized society by hazardous waste has only dawned over the past

10 to 15 years. The Emelle facility was one of the first permit-

ted hazardous waste disposal facilities in the country. It was

permitted in 1978, the same year City of Philadelphia, 437 U.S.

617 (1978), was decided. Due to the steadily increasing “not in

my back yard” syndrome,® there have been almost no new

permitted facilities since then.’ As a result, it is undisputed

that Alabama and a few other net importing states are han-

dling a disproportionate share of the nation’s hazardous waste

disposal burden.

Congress addressed this inequity by enacting SARA."® The

purpose of SARA is to develop additional facilities and agree-

*In the Congressional hearings on the SARA amendments to CERCLA,

the reluctance of states to site new treatment and disposal facilities was

addressed:

Unfortunately . . . Congress failed to anticipate the intensity of pub-

lic Opposition to new and expanded waste management facilities.

While everyone wants hazardous waste managed safely, hardly any-

one wishes it managed near them. This is the NIMBY syndrome

(Not-In-My-Backyard]. Yet if RCRA and Superfund programs are to

work — if public health and the environment are to be protected

— the necessary sites must be made available.

132 Cong. Rec. S$ 14924 (Oct. 3, 1986) (Remarks of Senator Chafee). See

generally Delogu, “NIMBY” As a National Environmental Problem, 35 S. Dak. L.

Rev. 198 (1990).

*Only one commercial hazardous waste landfill (at Last Chance, Colo-

rado) has been permitted in the last 10 years; and it has never operated or

accepted waste and is presently for sale. Chemical Waste Management, Inc. v.

Alabama Department of Revenue, No. 90-1098-PH, supra at 6.

'°A senior EPA official addressed the legislative intent behind SARA:

[Political pressures encourage states to export their wastes to

other states rather than to create available capacity .... By requir-

ing .... agreements between states regarding future access to avail-

able interstate capacity, Congress counterbalanced these political

pressures in exporting states with the political pressures in import-

ing states that might oppose continued receipt of such exports.

ments between states for hazardous waste management. One

of the purposes of the Holley Bill is to focus the attention of

net exporting states to the critical need to develop their own

hazardous waste treatment or disposal facilities so as to allevi-

ate the disproportionate share of the burden Alabama and a

few other states are presently bearing. The reciprocity provi-

sions of the Holley Bill advance the purposes of SARA by en-

couraging net exporting states to site new facilities or contract

with other states for allocation of excess disposal capacity.

As a result of the Holley Bill (and prior to the August 8,

1990 opinion of the Court of Appeals), the states of Vermont

and Mississippi passed legislation approving development of

in-state hazardous waste disposal facilities, thereby exercising a

new responsibility for their own hazardous waste problem.

The negative result of the Court of Appeals’ invalidation of

the Holley Bill, however, is best illustrated by the actions of

North Carolina."

Prior to enactment of the Holley Bill, North Carolina (like

Vermont and Mississippi) had no in-state hazardous waste

treatment or disposal facility. North Carolina exported its haz-

ardous waste to Alabama and other states. As a result of the

Holley Bill, in special session of its legislature, North Carolina

enacted legislation approving development of in-state hazard-

ous waste treatment and/or disposal facilities. As a conse-

quence, North Carolina was removed from Alabama’s ban list.

{[T]here were some senators who were very concerned that states

were not taking responsibility for their own hazardous waste. It is

the same problem we have seen in the southeast until Alabama

{with the Holley Bill] and South Carolina took some action. States

were sitting back not wanting to take very controversial actions to

site new facilities so this was put into the law to give some incentive

to states to think about their own hazardous waste.

Thomas Nessmith, Chief, Policy Planning and Evaluation, U.S. EPA Region

IV, “For the Record” Transcript, Sept. 13, 1989, Vol. II, Doc. 28.

"See Defendants’ submissions of affidavits by correspondence of June 14

& 29, 1990 and “Defendants’ Further Motion to Supplement the Record” of

December 18, 1989.

However, after the August 8, 1990 invalidation of the Holley

Bill by the Court of Appeals, North Carolina backed away from

the effort.'? The North Carolina reversal of responsible action

directly resulted from the Court of Appeals’ decision in this

case holding that Alabama and other net importing states are

powerless to encourage North Carolina and other states simi-

larly situated to establish hazardous waste landfills and/or

treatment facilities within their own borders.

Since enactment of the SARA amendments, Congressional

action to alleviate this problem has been blocked. The Sena-

tors and Representatives from the net exporting states have,

like their counterparts in their state legislatures, yielded to the

NIMBY syndrome of their constituents and blocked efforts to

provide specific relief to the relatively few net importing states.

There is presently little incentive to do otherwise. A further

negative factor is the heavy pressure from vested interests op-

posed to responsible legislation on the subject at either the

national or state level.

In the absence of any prior decision by this Court on haz-

ardous waste, the Court of Appeals incorrectly filled the void

by applying the majority position in City of Philadelphia v. New

Jersey, 437 U.S. 617 (1978). The correct basis for decision, how-

ever, appears in Maine v. Taylor, 477 U.S. 131 (1986), this

Court’s most recent decision dealing with the regulation of

interstate commerce to protect against environmental risks.

Maine v. Taylor

In Maine v. Taylor the State of Maine banned allimportation

of live baitfish. Notwithstanding that the statute facially dis-

criminated against interstate commerce, this Court upheld the

statute because the imported baitfish posed a msk to Maine's

environment (to the survival of domestic fish) and there was

insufficient technology to give Maine a nondiscriminatory al-

ternative. The Court stated:

2 See BNA Envt'l Rept 1597 (Dec. 28, 1990); and New York Times, March

11, 1991 at A20, col. 4.

Moreover, we agree with the District Court that

Maine has a legitimate interest in guarding against imper-

fectly understood environmental risks, despite the possi-

bility that they may ultimately prove to be negligible.

“(T]he constitutional principles underlying the Com-

merce Clause cannot be read as requiring the State of Maine

to sit idly by and wait until potentially irreversible environ-

mental damage has occurred... .”

477 U.S. at 148 (emphasis added).

Maine contended it could not effectively identify and separate

sick imported baitfish from healthy baitfish, so it was allowed

to ban importation of all baitfish to avoid the environmental

risk. The Court concluded:

The Commerce Clause ... does not elevate free

trade above all other values. As long as a State does

not needlessly obstruct interstate trade or attempt to

“place itself in a position of economic isolation,” . . .

it retains broad regulatory authority to protect the

health and safety of its citizens and the integrity of its

natural resources. The evidence in this case amply

supports the District Court’s findings that Maine’s

ban on the importation of live baitfish serves legiti-

mate local purposes that could not adequately be

served by available nondiscriminatory alternatives.

This is not a case of arbitrary discrimination against

interstate commerce; the record suggests that Maine

has legitimate reasons, “apart from their origin, to

treat [out-of-state baitfish] differently”... .

477 U.S. at 151-52.

Hazardous waste is an “imperfectly understood“ environ-

mental risk. To be sure, it poses serious risks to human health

and the environment, so much so that Congress has decided

landfilling of hazardous waste should be discouraged and al-

ternative disposal technologies developed.’* In fact, the Dis-

In the Congressional findings accompanying the 1983 amendments to

RCRA, Congress found that “reliance on land disposal should be minimized

or eliminated, and land disposal, particularly landfill and surface impound-

trict Court found the hazardous waste buried in Alabama to

consist of over 100 “flammable, corrosive, poisonous or can-

cer-causing chemicals” that can “blind, cripple or kill.” 729 F.

Supp. at 797.

What is most sobering is the vast quantities of these chemi-

cals permanently buried in Alabama. In recent years over a

hillion pounds per year of hazardous waste have been shipped

to Emelle. Hazardous waste is inherently dangerous. The risk

in Alabama is compounded by the large volumes imported. It

is uncertain what synergistic consequences these compound-

ing volumes will produce. The legislative findings in the

Holley Bill evidence an overriding concern by the Alabama

Legislature for the health and environmental dangers arising

from the increasing volumes of hazardous waste transported

through the state and permanently buried at Emelle.

As recognized in Maine v. Taylor, protection of public health

and the integrity of natural resources is a legitimate local in-

terest. Furthermore, there is no lesser restrictive alternative.

To ban all interstate hazardous waste at Alabama’s borders

would be more restrictive, as would be the closing of Emelle to

in-state and as well as interstate hazardous waste. Hazardous

waste cannot be rendered safe under present technology, nor

may its ultimate consequences presently be more perfectly un-

derstood. Therefore, Alabama has addressed the problem with

the least restrictive or discriminatory alternative — not by ban-

ning hazardous waste — but by attempting to tmpact the vol-

ume of wastes buried at Emelle by encouraging states now do-

ing nothing to alleviate the problem to proceed with the siting

of new facilities."* Maine v. Taylor holds that Alabama “need

not sit idly by and wait until potentially irreversible environ-

mental damage has occurred ... before it acts to avoid such

ment, should be the least-favored method of managing hazardous

wastes .... 42 U.S.C. § 6901(b)(7).

“The Holley Bill conditionally restricts hazardous waste from some 22

states with no hazardous waste treatment or disposal facilities, or efforts

under way to develop same.

Tirta

are

consequences.” Jd. at 148. Alabama’s enactment of the Holley

Bill is a rational and legitimate extension of that philosophy

and principle.

Stated differently, Alabama has a rational basis on which to

treat certain out-of-state wastes differently. When such treat-

ment is justified, the Commerce Clause is not offended. New

Energy Co. v. Limbach, 486 U.S. 268, 100 L. Ed. 2d 302, 308, 108

S.Ct. 1803 (1988). Furthermore, reciprocity and other provi-

sions that afford other states less favored treatment are permis-

sible, so long as such treatment complies with the minimum

requirements of the Commerce Clause. 100 L. Ed. 2d at 311.

Speaking for a unanimous Court, Mr. Justice Scalia explained:

Our cases leave open the possibility that a State may

validate a statute that discriminates against interstate

commerce by showing that it advances a legitimate

local purpose that cannot be adequately served by

reasonable non-discriminatory alternatives .... This

is perhaps just another way of saying that what may

appear to be a “discriminatory” provision in the con-

sututionally prohibited sense — that is, a protection-

ist enactment — may on closer analysis not be so.

100 L. Ed. 2d at 311-12.

The Holley Bill is just such a measure. It is not a protection-

ist enactment. By encouraging other states to establish hazard-

ous waste disposal and treatment facilities of their own and

thereby reduce the volume of hazardous waste exported into

Alabama for permanent burial, it protects Alabama’s citizens

and environment, not the state’s commercial interests. The

Holley Bill also facilitates Alabama’s compliance with the

SARA Amendments’ capacity assurance provisions. The Holley

Bill represents the least discriminatory and burdensome mea-

sure that the state could enact to achieve its legitimate goals.

There are compelling and justifiable reasons for the Holley

Bill’s conditional differentiation between hazardous waste

from those states which are doing nothing about this national

problem and those which are. The reciprocity clause in the

Holley Bill allows Alabama to keep its site open while pressing

other states to resolve their problems in a way that satisfies the

reciprocity condition. It encourages other states to address the

problem, rather than continue blithely to export hazardous

waste to the few net importing states. This increases the likeli-

hood of the recalcitrant states bearing at least some of the

burden, thereby decreasing the amount of the hazardous

waste danger to Alabamians.

City of Philadelphia v. New Jersey

The linchpin of the Court of Appeals’ reversal of the Dis-

trict Court was its incorrect application of one case: City of

Philadelphia v. New Jersey, supra. But City of Philadelphia can and

should be distinguished, for:

(1) Unlike the simple solid waste or garbage in City

of Philadelphia, the instant case concerns hazard-

ous waste, which is inherently dangerous in all

aspects, including transportation as well as

burial.

(2) Unlike New Jersey in City of Philadelphia with its

garbage landfills, Alabama is not attempting to

hoard its remaining hazardous waste landfill

space.

(3) Unlike New Jersey in City of Philadelphia, Ala-

bama is not trying to isolate itself from the com-

mon problem; Alabama is not erecting a rigid

ban against the movement of all out-of-state haz-

ardous waste.

(4) Unlike New Jersey in City of Philadelphia, Ala-

bama is not imposing on out-of-state commercial

interests the full burden of conserving Alabama's

remaining hazardous waste landfill space; rather,

the Holley Bill is a conditional ban aimed at en-

Seed

couraging the banned states to share in the local

and national burden which they now totally

avoid.

(5) Unlike New Jersey in City of Philadelphia, Ala-

bama’s actions are a reasonable and legitimate

exercise of its police powers.

(6) Unlike New Jersey in City of Philadelphia, in the

Holley Bill, Alabama has posed the same precon-

ditions on out-of-state hazardous waste as its

own.

(7) Unlike New Jersey in City of Philadelphia, Ala-

bama’s Holley Bill is a direct response to the

Congressional mandate in SARA that the states

work together in addressing this hazardous waste

problem common io all.'®

(8) Unlike New Jersey in City of Philadelphia, Ala-

bama’s Holley Bill is inclusive, not exclusive, in

that any state can easily meet the pre-conditions

for its removal from the ban (viz. Vermont, Mis-

sissippi, and temporarily, North Carolina, supra,

11-12).

However, in the opinion below, the Court of Appeals stated,

“In concluding that hazardous waste is an object of commerce,

we follow precedent of this circuit. See State of Alabama v. United

States EPA, 871 F.2d 1548, 1555 n.3 (11th Cir. 1989)....”

App. A, at A-10, 910 F.2d 719. State of Alabama involved the

issues of individual plaintiffs’ standing to challenge a hazard-

ous waste remedial action plan under the Fifth Amendment

and CERCLA and whether subject matter jurisdiction existed.

The court held there was no standing or jurisdiction. The

court did not analyze any Commerce Clause issue. It was only

in passing that the court observed in a footnote:

'SSee paragraph 3 of the legislative findings in the Holley Bill. Page 7,

supra.

3. To the extent plaintiffs also seem to assert injury

based on the out-of-state nature of these wastes, the

Supreme Court has already held that the commerce

clause bars such a distinction. City of Philadelphia v.

New Jersey, 437 U.S. 617 . . . (1978).

871 F.2d 1555 n.3.

That meager statement is now the basis for an expanding body

of law on this exceedingly important national issue. Not only

was there no analysis of this statement in State of Alabama, but

the statement in the footnote is not correct. City of Philadelphia

neither involved nor addressed hazardous wastes. Therefore,

there is a whole body of precedent developing from a false

premise: that nondangerous solid waste is the same as danger-

ous hazardous waste. Given the misperception and misapplica-

tion of the Court’s opinion in City of Philadelphia, the instant

case presents a vital opportunity to resolve this conflict in the

law.

The dissent by Chief Justice Rehnquist in City of Philadelphia,

which was in effect applied in the later case of Maine v. Taylor,

supra, points the way to the proper decision in this case. The

dissent would have upheld New Jersey’s ban under the quaran-

tine cases, finding that the solid waste and the accumulation of

increasing volumes of solid waste posed potential risks such that

solid waste should not be considered an article of commerce.

“In my opinion, [the quarantine] cases are dispositive of the

present one.... New Jersey should be free under our past

precedents to prohibit the importation of solid waste because

of the health and safety problems that such waste poses to its

citizens .... I simply see no way to distinguish solid waste . .

from germ-infected rags, diseased meat, and other noxious

items.” Jd. at 632-33 (Rehnquist, J., dissenting). For instance,

the problems in dealing with a Love Canal incident are far, far

different than those dealing with ordinary solid waste: the dif-

ference is dealing with toxic chemicals generated by industry

on the one hand, and dealing with ordinary household gar-

bage on the other. It is not appropriate to clothe hazardous

waste in the armament of an ordinary article of commerce

entitled to normal constitutional protection.

“[S]tates can prohibit the importation of items ‘which, on

account of their existing condition, would bring in and spread

disease, pestilence, and death... .’” City of Philadelphia, 437

U.S. at 631 (Rehnquist, J., dissenting). These “quarantine

laws” are not considered protectionist measures even though

they are directed against out-of-state commerce. /d."° The

question in this case is whether chemical wastes that the trial

court found can maim or kill and devastate the environment

are to be treated more like articles that spread “disease, pesti-

lence or death,” or more like ordinary articles of commerce

such as milk,’’ apples,'* and wine.'?

Hazardous waste poses the risk of disease and death. Many

of the chemicals permanently buried in Alabama consist of

poisons and carcinogens that will blind, cripple or kill. Haz-

ardous waste is nothing more than toxic refuse from our eco-

nomic operations. It has no intrinsic value or usefulness, but is

to be promptly discarded. The present level of traffic in haz-

ardous waste is not due to the value of the waste in commerce,

but is due to the fact that because of local political pressures

other states force it to be exported for burial in Alabama.

Congress has set the policy that alternative technologies be

developed to eliminate or significantly reduce hazardous

"Citing Bowman v. Chicago & Northwestern R. Co., 125 U.S. 465 (1888);

Balduin v. G.A.F. Seeig, 294 U.S. 511 (1935); Sligh v. Kirkwood, 237 U.S. 52

(1915); Asbell v. Kansas, 209 U.S. 251 (1908); Ratlroad Co. v. Husen, 95 US.

465 (1878).

Dean Milk Co. v. Madison, 340 U.S. 349 (1951).

Hunt v. Washington Apple Advertsing Comm'n, 432 U.S. 333 (1977).

'* Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984).

waste.” Given that Congressional intent is to eliminate these

dangerous and noxious substances, it cannot be said that haz-

ardous waste is the typical legitimate article of commerce en-

titled to full protection of the Commerce Clause.

Alabama’s declination to erect a total ban (as presumably it

could under the quarantine laws and under the opinion of the

Court of Appeals) does not legitimize hazardous waste as an

article of commerce entitled to constitutional protection.

While reducing the risk of epidemic disease requires an at-

tempt to keep out the first germ, the risk of hazardous waste is

directly proportional to the volume of waste. In the case of

disease organisms, effective protection consists of a total ban

of the germ that causes the condition. With hazardous waste,

the risk can be minimized by controlling the volume of waste.

Alabama’s legitimate state interest in protecting public

health and the environment is all the more evident since the

full risks associated with permanent burial of vast quantities of

hazardous waste are, as yet, unclear. “I do not see why a State

may ban the importation of items whose movement risks con-

tagion, but cannot ban the importation of items which, al-

though they may be transported into the State without undue

hazard, will then simply pile up in an ever increasing danger

to the public’s health and safety.” City of Philadelphia, 437 U.S.

at 632-33 (Rehnquist, J., dissenting).

“The 1984 amendments to RCRA states:

The Congress hereby declares it to be the national policy of the

United States that wherever feasible, the generation of hazardous

waste is to be reduced or eliminated as expeditiously as possible.

Waste that is nevertheless generated should be treated, stored, or

disposed of so as to minimize the present and future threat of

human health and the environment.

42 U.S.C. § 6902(b). By enacting the SARA Amendments, Congress recog-

nized that importing states have legitimate local interests in participating in

the process that encourages exporting states to site new hazardous waste

facilities. In effect, Congress encouraged and authorized states like Alabama

to use their leverage.

———

————

In the alternative, if the original holding in City of Philadel-

phia is said to extend far enough to encompass hazardous

waste, then it is time to revisit the case, given the develop-

ments over the past thirteen years following the issuance of

that opinion. These developments include a much greater ap-

preciation of the still not completely known dangers of haz-

ardous waste, the vastness of the quantities of this toxic waste

produced nationwide, and the current shame of a few states

being required to bear disproportionately the national burden

of hazardous waste disposal.

As aptly stated by Professor Delogu:

... The difficulty of the NIMBY problem, coupled with

the diversity that exists among the 50 states, suggests that

this is one of those areas where we should not just tolerate

but should invite that experimentation within the states that

Justices from Brandeis to O’Connor have spoken of. See

FERC v. Mississippi, 456 U.S. 742, 788 (1982) (“Courts and

commentators frequently have recognized that the 50 States

serve as laboratories for the development of new social, eco-

nomic, and politcal ideas. This state innovation is no judi-

cial myth.”); New State Ice Co. v. Liebmann, 285 U.S. 262,

311 (1932) (Brandeis, ]., dissenting).

Delogu, 35 S. Dak. L. Rev. at 210 n. 38.

CONCLUSION

Here we have a convergence of: (1) important Federal con-

stitutional law issues of first impression, (2) a state statute in-

validated by a Federal court of appeals, (3) the stated intent of

Congress for state assistance in the safe management of haz-

ardous waste, with emphasis on the development of further

disposal and treatment sites, and (4) a few net-importing states

currently being required to bear disproportionately the na-

tional burden of hazardous waste landfilling. Petitioners urge

that the writ of certiorari be issued.

May 6, 1991

Of Counsel:

Ronald W. Farley

Alabama Dept. of Envir. Man.

1701 Cong. W.L. Dickinson Dr.

Montgomery, AL 36130

H. William Wasden

Legal Advisor to the Governor

11 South Union St.

Montgomery, AL 36130

William D. Little

Assistant Attorney General

State of Alabama

11 South Union St.

Montgomery, AL 36130

Respectfully submitted,

*Bert S. Nettles

Alton B. Parker, Jr.

J. Mark Hart

Kenneth O. Simon

SPAIN, GILLON, GROOMS,

BLAN & NETTLES

2117 2nd Avenue North

Birmingham, AL 35203

(205) 328-4100

Attorneys for Petitioners

*Counsel of Record

APPENDIX

A-]

APPENDIX A

UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

90-7047

Aug. 8, 1990

NATIONAL SOLID WASTES MANAGEMENT ASSOCIA-

TION, and Chemical Waste Management, Inc., Plaintiffs-

Appellants,

¥.

The ALABAMA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT; Leigh Pegues, Individually and as Direc-

tor of the Alabama Department of Environmental Manage-

ment; and Guy Hunt, Individually and as Governor of Ala-

bama, Defendants-Appellees.

EDMONDSON, Circuit Judge:

The United States’ largest and Alabama's only commercial

hazardous waste management facility is located at Emelle, Ala-

bama. The owner and operator of this facility, Chemical

Waste Management, Inc. (“ChemWaste”), along with the Na-

tional Solid Wastes Management Association, a trade associa-

tion representing the waste management industry, brought

this action seeking declaratory and injunctive relief, against

the Alabama Department of Environmental Management;

Leigh Pegues, Director of the Department; and Guy Hunt,

Governor of Alabama (collectively referred to as “defendants”

or “Alabama”).

The suit challenges Ala.Code § 22-30-11 (Supp. 1989),

known as the “Holley Bill,” which prevents comimercial waste

management facilities like Emelle from accepting hazardous

wastes generated in states other than Alabama unless the

other states have met certain statutory requirements. Plaintiffs

A-2

also challenge two sets of Alabama regulations that require

generators of hazardous wastes to receive the state’s pre-ap-

proval before shipping wastes to management facilities in Ala-

bama and that require certain wastes to be pretreated before

disposal. See Ala.Admin.Code rr. 14-3-.08 & 14-9-.03 (1989).

Before the challenged acts became effective, the Emelle facil-

ity accepted hazardous wastes for treatment, storage, and dis-

posal from forty-eight states; eighty-five percent of the wastes

disposed of at Emelle were generated outside Alabama.

Plaintiffs challenge the Alabama legislative and administra-

tive acts on two grounds: that the acts are preempted by fed-

eral laws and regulations, and that the acts violate the com-

merce clause of the United States Constitution.’ The district

court granted summary judgment for defendants, finding the

challenged actions to be constitutional. 729 F.Supp. 792. We

have plenary review over the district court’s decision. See

Buxton v. City of Plant City, Fla., 871 F.2d 1037, 1040 (11th Cir.

1989).

In deciding this case, our job is not to make policy, but to

interpret the federal legislation and regulations to determine

Congress’s intent and to interpret Alabama's legislative and

administrative acts to determine whether they are consistent

with the Constitution and the federal environmental statutory

scheme. We recognize that serious problems associated with

hazardous waste management plague our nation; but what-

ever our Own views may be about the effectiveness of what

Congress or Alabama has done, we can only apply the law. We

accordingly vacate the district court’s grant of summary judg-

ment for defendants on the Holley Bill and on the regulations

requiring pre-approval because those acts violate the com-

merce clause. We vacate summary judgment for defendants

on the regulations that require pretreatment, to the extent

'Piaintiffs’ complaint also alleged that the acts violated the due process,

takings, and contract clauses of the Constitution. The district court did not

discuss these claims in its opinion, and we do not address the claims

because we grant plaintiffs’ requested relief on other grounds.

et EC COT

A-3

those regulations are dissimilar from regulations promulgated

by the Environmental Protection Agency (“EPA”), because

Congress has preempted Alabama’s actions.

I. THE HOLLEY BILL

A. BACKGROUND

in 1980, the United States Congress enacted the Compre-

hensive Environmenta! Response, Compensation, and Liabil-

ity Act of 1980, 42 U.S.C. §§ 9601-9675 (1982 & Supp. V 1987)

(“CERCLA”), designed to accomplish the cleanup of hazard-

ous waste sites. CERCLA established liability standards for per-

sons responsible for unsafe hazardous waste sites and created

“Superfund,” a fund that the federal government can use

when responsible parties do not conduct the cleanups. See 42

U.S.C. § 9607. CERCLA provides for two types of cleanup ac-

tions: remedial actions, which are generally long-term or per-

manent containment or disposal programs, 42 U.S.C.

§ 9601(24); and removal efforts, which are usually short-term

cleanup arrangements of a more immediate nature. 42 U.S.C.

§ 9601 (23).

“A critical step in the implementation of a rational, safe

hazardous waste program is the creation of new [hazardous

waste disposal] facilities.” 132 Cong.Rec. $14,924 (daily ed

Oct. 3, 1986) (statement of Sen. Chafee). Because Congress

perceived that few states had developed programs to assure

continued disposal capacity in the long run, Congress

amended CERCLA in 1986 by enacting the Superfund

Amendments and Reauthorization Act (“SARA”), Pub.L. Ne.

99-499, 100 Stat. 1613 (codified in scattered sections of 10, 26

& 42 U.S.C.). “Congress was concerned that certain states,

because of political pressures and public opposition, were not

able to create and to permit sufficient facilities within their

borders to treat and securely dispose of (or manage) the

amounts of wastes produced in those states.” Office of Solid

Waste and Emergency Response, U.S. EPA, Assurance of Haz-

ardous Waste Capacity: Guidance to State Officals |hereinafter

A-4

“EPA Guidance Doc.”], at 2 (Dec. 1988). See S.Rep. No. 11,

99th Cong., Ist Sess. 22 (1985) (“Pressures from local citizens

place the political system in an extremely vulnerable posi-

tion.... The broader social need for safe hazardous waste

management facilities often has not been strongly repre-

sented in the .... process [of creating new facilities]. A com-

mon result has been ... no significant increase in hazardous

waste capacity over the past several years.”).

The provision of SARA at issue in this case, section

104(c)(9), 42 U.S.C. § 9604(c)(9), requires that each state

present a proposal to EPA showing that the state will have

adequate capacity available to dispose of the hazardous wastes

generated within the state for the next twenty years.’ If the

state does not provide such capacity assurances deemed ad-

equate by EPA,’ the state is prohibited from receiving

*The full text of section 104(c) (9) is as follows:

(9) Siting

Effective 3 years after October 17, 1986, the President shall not

provide any remedial actions pursuant to this section unless the

State in which the release occurs first enters into a contract or

cooperative agreement with the President that the State will as-

sure the availability of hazardous waste treatment or disposal fa-

cilities which —

(A) have adequate capacity for the destruction, treatment, or

secure disposition of all hazardous wastes that are reasonably

expected to be generated within the State during the 20-year

period following the date of such contract or cooperative

agreement and to be disposed of, treated, or destroyed,

(B) are within the State or outside the State in accordance

with an interstate or regional agreement or authority,

(D) are in compliance with the requirements of subutle C of

the Solid Waste Disposal Act [42 U.S.C. § 6921 et seq.]

42 U.S.C. § 9604(c) (9) (brackets in original).

‘States are required to submit a plan to EPA by October 17, 1989. 42

U.S.C. § 9604(c) (9). EPA contemplates that states will update these plans

every two years because of the difficulties of projecting waste generation

and of planning for waste disposal twenty years into the future. EPA Guid-

ance Doc. at 6-7.

pi TR REM ore

A-5

Superfund money for remedial cleanup actions taken within

the state.‘

Congress recognized that — because of geological factors

or for other reasons — every state may not be able to create

new disposal facilities within its borders and will not be able to

dispose of its own wastes within its own borders for the next

twenty years. SARA contemplates that a state may meet its

section 104(c)(9) capacity assurance requirements by plan-

ning to use other states’ disposal facilities and privately owned

disposal facilities. 132 Cong.Rec. $14, 924 (daily ed. Oct. 3,

1986) (statement of Sen. Chafee). Section 104(c) (9) provides

that a state may base its capacity assurance plan on such facili-

ties if the state has entered into an agreement for the use of

those facilities. 42 U.S.C. § 9604(c)(9)(B). For example, a

state that cannot safely dispose of its wastes within its borders

(an exporting state) may reach agreements with another state

or group Of states (importing states) under which the import-

ing states agree to allocate a portion of their disposal capacity

to the exporting state. An exporting state may also contract

with a privately owned waste management facility. See EPA

Guidance Doc. at 3; S.Rep. No. 11, 99th Cong., Ist Sess. 22

(1985). SARA places the burden of making capacity assur-

ances on the exporting (waste generating state), and not on

the importing state. SARA nowhere requires that an import-

ing state enter into interstate or regional agreements, but

most states will need to enter into such agreements because

most states lack the capacity to dispose of all types of hazard-

ous wastes within their borders.°

‘The availability of funds for removal actions is not affected because these

are emergency actions to cleanup hazardous wastes posing an immediate

threat. Funds are withheld for the long-term, permaneni cleanup of sites

on the National Priorities List. S.Rep. No. 11, 99th Cong., Ist Sess. 22

(1985).

*For example, a regional agreement between Alabama, Kentucky, South

Carolina, and Tennessee allows Tennessee and Kentucky to use excess

landfill capacity in Alabama and South Carolina. The agreement also al-

lows the other three states to use Tennessee's excess aqueous treatment

capacity and to use Kentucky’s excess incineration capacity.

A-6

In the light of SARA’s capacity assurance requirement and

the concern of Alabama’s leaders over the large amounts of

other states’ hazardous wastes being disposed of in Alabama,°

the Alabama legislature in 1989 enacted Ala.Code § 22-30-11,

popularly called the ‘Holley Bill.” This provision prohibits the

owner or operator of a commercial hazardous waste manage-

ment facility located in Alabama from treating or disposing of

hazardous wastes generated in a state other than Alabama, if

the other state either (1) prohibits the treatment or disposal

of hazardous waste within its borders and has no facility for

such; or (2) has no facility existing within that state for the

treatment or disposal of hazardous waste and has not entered

into an interstate or regional agreement for the disposal of its

wastes to which Alabama is a signatory. The Holley Bill also

prohibits commercial waste management facilities in Alabama

from contracting with a state other than Alabama to satisfy the

other state’s capacity assurance obligation.’

*During 1987, Alabama industries shipped about 57,000 tons of hazard-

ous waste out of state for management, but the state imported about

500,000 tons of hazardous waste for treatment and disposal. Leuer, dated

July 27, 1989, to The Honorable Buddy Roemer, Governor of Louisiana,

from Leigh Pegues. R-I-17-Exh. F. In a press release announcing enact-

ment of the Holley Bill, Governor Hunt said that Alabama was “becoming

the waste dump of the nation.” Gov. Hunt Announces States that are Prohitnted

from Shipping Hazardous Waste to Alabama, Press Release, Aug. 29, 1989, at 2.

R-I-17-Exh. G.

"The Holley Bill states, in pertinent part:

(b) Itis unlawful for any person who owns or operates a commer-

cial hazardous waste treatment or disposal facility within this state

to dispose or treat any hazardous wastes generated in any state

outside the state of Alabama which:

(i) Prohibits by law or regulation the treaument or disposal of

hazardous wastes within that state and which has no facility per-

mitted or existing within that state for the weatment or disposal

of hazardous wastes; or

(ii) Has no facility permitted or existing within that state for

the treatment or disposa! of hazardous wastes; unless that state

has entered into an interstate or regional agreement for the safe

disposal of hazardous wastes pursuant to the federal Comprehen-

A-7

Under authority of this bill, Alabama has issued a “blacklist”

which, on September 13, 1989 (the effective date of the

Holley Bill), precluded Emelle from accepting hazardous

wastes from twenty-two states and the District of Columbia.*

Between January 1, 1989 and October 1, 1989, Emelle re-

ceived wastes from seventeen of the twenty-two states on the

Holley Bill’s blacklist. In addition, Emelle has ongoing con-

tracts with waste generators in most of the banned states.

sive Environmental Response, Compensation, and Liability Act.

The department shall establish and maintain a list of states from

which hazardous wastes cannot be accepted for treatment or dis-

posal pursuant to this paragraph and there shall be no liability

under the paragraph for disposal of wastes from a state until 15

days after a state has been listed by the department. Such list shall

be publicly available and set forth the reasons why each state is

listed. The date on which a state is included on such list shall be

provided. The list of states shall be revised monthly. The state of

generation as shown on the hazardous waste manifest shall be

used in determining whether a person has treated or disposed of

waste in violation of this subsection and any person who alters the

state of generation on any manifest or misrepresents the state of

generation of any hazardous waste for the purpose of circumvent-

ing this statute shall be punishable in accordance with section 22-

30-19 herein.

no commercial hazardous waste treatment or disposal facility op-

erating in this state may contract with states other than the state

of Alabama in order to satisfy the Comprehensive Environment

Response, Compensation, and Liability Act, as amended.

(d) For the purpose of this section, the following additional

terms are defined:

(1) AGREEMENT. Any interstate or regional contract or

agreement made pursuant to capacity assurance requirements of

Section 42 U.S.C. § 9604(c)(9) of CERCLA and which one of the

signatories to such contract or agreement is the state of Alabama.

Ala.Code § 22-30-11.

"The Holley Bill requires that this list be updated monthly. Ala.Code

§ 22-80-11 (b) (ii).

A-8

B. THE COMMERCE CLAUSE

Plaintiffs contend that the Holley Bill violates the commerce

clause of the United States Constitution. U.S. Const., Art. 1, § 8,

cl. 3. We agree. As discussed below, we hold that hazardous waste

is an object of commerce, that the Holley Bill erects a barrier to

the interstate movement of hazardous wastes, and that Congress

did not — by enacting the SARA amendments te CERCLA —

authorize this restriction on interstate commerce.

1. Object of Commerce

“All objects of interstate trade merit Commerce Clause pro-

tection; none is excluded by definition at the outset.” City of

Philadelphia v. New Jersey, 437 U.S. 617, 622, 98 S.Ct. 2531,

2534, 57 L.Ed.2d 475 (1978). But when the dangers inhering

in an object’s movement “far outweigh []” its worth in inter-

state commerce, a state can prohibit transportation of the

object across state lines. Jd. For example, the Supreme Court

has said that a state may restrict interstate movement of an

object when, on account of the object’s “existing condition,

[it] would bring in and spread disease, pestilence, and death.”

Bowman v. Chicago & Northwestern R. Co., 125 U.S. 465, 489, 8

S.Ct. 689, 700, 31 L.Ed. 700 (1888) (striking down state prohi-

bition on interstate movement of liquor); see also Clason v.

State of Indiana, 306 U.S. 439, 442, 59 S.Ct. 609, 611, 83 L.Ed.

858 (1939) (upholding Indiana’s prohibition against inter-

State transportation of large dead animals because “obvious

purpose of the enactment [was] to prevent the spread of dis-

ease and the development of nuisances”).

The Supreme Court in City of Philadelphia v. New Jersey ex-

pressly concluded that the interstate movement of solid and

liquid wastes is commerce. 437 U.S. at 621-23, 98 S.Ct. at 2534-

35. In that case, the Court rejected the lower court’s conclu-

sion that the waste was not an object of commerce because it

was valueless and could not be put to effective use. The Court

held that the innate danger of the solid and liquid waste did

not outweigh its worth in interstate commerce.

A-9

Although the hazardous waste involved in this case may be

innately more dangerous than the solid and liquid waste in-

volved in City of Philadelphia,’ we cannot say that the dangers

of hazardous waste outweigh its worth in interstate commerce.

Congress has defined hazardous waste as “a solid waste . .

which ... may ... cause, or significantly contribute to a sig-

nificant increase in mortality or an increase in serious ...

illness, or ... pose a substantial present or potential hazard to

human health or the environment when improperly treated,

stored, transported, or disposed of, or otherwise managed.”

42 U.S.C. § 6903(5) (emphasis added). The legislative and

executive branches of the federal government together with

the separate states have developed a comprehensive scheme

for regulating the management of hazardous waste. Waste

generators, transporters, and managers must comply with

highly technical and rigid rules designed to ensure that the

movement of hazardous waste is accomplished with a mini-

mum of danger to the public and to the environment. To the

extent these rules can and do provide for the safe transporta-

tion of hazardous waste, the dangers associated with hazard-

ous waste movement do not outweigh the value of moving

hazardous waste across state lines.

*The Supreme Court never described the waste at issue in City of Philadel

phia as “hazardous”; the Court was apparenuy considering “solid waste,”

defined by Congress as: “any garbage, refuse, sludge from a waste treat-

ment plant, water supply treatment plant, or air pollution control facility

and other discarded material, including solid, liquid, semisolid, or con-

tained gaseous material resulting from industrial, commercial, mining,

and agricultural operations and from community activities. ...” 42 U.S.C.

§ 6903(27). The New Jersey statute and regulations, struck down by the

Court, closed New Jersey's borders to all such wastes from other states,

with the exception of four narrow categories of waste, including garbage

fed to swine and municipal solid waste processed into fuel. See City of

Philadelphia, 437 U.S. at 619 nn. 2 & 3, 98 S.Ct. at 2533 & nn. 2 & 3 (citing

N.J.StatAnn. § 13-1]-1 et seq. (West Supp. 1978); N.J.Admin.Code 7:1-4.2

(Supp. 1977)).

A-10

In concluding that hazardous waste is an object of com-

merce, we follow precedent of this circuit. See State of Alabama

v. United States EPA, 871 F.2d 1548, 1555 n. 3 (11th Cir. 1989)

(“To the extent plaintiffs also seem to assert injury based on

the out-of-state nature of these wastes [PCBs and other toxic

wastes], the Supreme Court has already held that the com-

merce clause bars such a distinction.” (citing City of Philadel-

phia)), cert. denied sub nom. Alabama ex rel Siegelman v. United

States EPA, ___ U.S. __, 110 S.Ct. 538, 107 L.Ed.2d 535

(1989). Accord Hardage v. Atkins, 582 F.2d 1264, 1266 (10th

Cir. 1978) (“controlled industrial waste,” defined in Okla-

homa statute as refuse products that are toxic to human, ani-

mal, aquatic, or plant life, is within purview of commerce

clause). In addition, this conclusion comports with the Holley

Bill, which banned the transport of hazardous wastes into Ala-

bama only from certain states, not from all states, thereby

suggesting hazardous waste is not inherently too dangerous to

be a product in commerce.

2. Barner to Interstate Commerce

Because hazardous waste is an object of commerce and be-

cause the Constitution gives Congress the power to regulate

the interstate movement of hazardous waste, a state’s restric-

tion of that movement is subject to constitutional scrutiny. See

City of Philadelphia, 437 U.S. at 622-23, 98 S.Ct. at 2535. To

determine whether the Holley Bill erects a barrier to inter-

state commerce, we follow the test set out by the Supreme

Court in City of Philadelphia:

[W]here simple economic protectionism is effected

by state legislation, a virtually per se rule of invalidity

has been erected. The clearest example of such legis-

lation is a law that overtly blocks the flow of inter-

state commerce at a State’s borders. But where other

legislative objectives are credibly advanced and there

is no patent discrimination against interstate trade,

the Court has adopted a much more flexible ap-

A-11

proach, the general contours of which were outlined

in Pike v. Bruce Church, Inc. (397 U.S. 137, 142, 90

S.Ct. 844, 25 L.Ed.2d 174]

Id. at 624, 98 S.Ct. at 2535 (citations omitted). The crucial

inquiry, therefore, is whether the Holley Bill is basically a pro-

tectionist measure, or whether it is based on legitimate local

concerns with effects on interstate commerce that are only

incidental. /d. at 624, 98 S.Ct. at 2536.

The district court below concluded that the Holley Bill was

directed toward a legitimate state concern: complying with

SARA’s capacity assurance requirements. The district court

said that the Holley Bill was “not an effort to isolate Alabama

from the national economy.” National Solid Wastes Management

Ass'n v. Alabama Dep't of Envtl. Management, 729 F.Supp. 792,

804 (N.D.Ala. 1990). We disagree. First, the Holley Bill is not

required for Alabama to comply with section 104(c)(9)’s ca-

pacity assurance requirement. According to the Senate Report

on SARA and the EPA Guidance Document, Alabama may

satisfy its capacity assurance requirements by any combination

of three measures: (1) creating new disposal capacity within

the state, (2) entering into interstate or regional agreements

allowing Alabama to use capacity located in other states, and

(3) contracting with private waste management facilities.

S.Rep. No. 11, 99th Cong., Ist Sess. 22 (1985); EPA Guidance

Doc. at 3. If Alabama’s capacity assurance plan depends on

capacity provided by a commercial, privately owned manage-

ment facility such as Emelle, the state should contract with the

private facility for that capacity, instead of blocking the private

facility from accepting wastes from other sites.

Second, while the Alabama legislature made a finding that

large volumes of hazardous waste entering the state increased

the likelihood of accidents and the risk to Alabama’s citizens

and environment, see Ala.Act. No. 89-788, Alabama did not

ban the shipment of all hazardous wastes into the state, but

only shipments from certain states. “(T]he evil of protection-

ism can reside in legislative means as well as legislative ends.”

City of Philadelphia, 437 U.S. at 626, 98 S.Ct. at 2536-37. Even if

A-12

Alabama’s purpose in enacting the Holley Bill was to protect

human health and the environment in Alabama, that purpose

“may not be accomplished by discriminating against articles of

commerce coming from outside the State unless there is some

reason, apart from their origin, to treat them differently.” /d.

at 626-27, 98 S.Ct. at 2537. Plaintiffs presented testimony un-

disputed by defendants that the types of wastes accepted at

the Emelle facility did not vary based upon the states in which

the wastes were generated. The Holley Bill plainly distin-

guishes among wastes based on their origin, with no other

basis for the distinction.

Because Alabama’s law is a protectionist measure not based

adequately on a legitimate local concern, the district court

was wrong to apply the Pike v. Bruce Church, Inc. balancing test.

The Holley Bill does not regulate “evenhandedly” and its ef-

fects on interstate commerce are not merely incidental. See

Pike, 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174

(1970). On its face, the Holley Bill discriminates against out-

of-state waste generators and imposes on these generators the

burden of conserving Alabama’s remaining hazardous waste

disposal capacity. We reject the district court’s conclusion

that, because Alabama closed its borders to only some states,

Alabama is not hoarding its disposal capacity. Alabama has

attempted to “isolate itself from a problem common to many

by erecting a barrier against the movement of interstate

trade.” City of Philadelphia, 437 U.S. at 628, 98 S.Ct. at 2538.

Contrary to defendants’ arguments, the Holley Bill does not

fall within an exception to the commerce clause carved out by

the so-called “quarantine cases.” In these cases, the Supreme

Court upheld state legislation that facially discriminated

against out-of-state commerce involving articles that were

highly dangerous. For example, the Court upheld a Maine

statute that prohibited the importation of a certain type of

baitfish not native to Maine because the baitfish contained a

parasite that could have a serious detrimental effect on

Maine’s fisheries. Maine v. Taylor, 477 U.S. 131, 106 S.Ct.

2440, 91 L.Ed.2d 110 (1986). Such state laws do not discrimi-

A-13

nate against interstate commerce, however, but “simply pre-

vent[] traffic in noxious articles, whatever their origin.” City of

Philadelphia, 437 U.S. at 629, 98 S.Ct. at 2538.

Alabama’s selective ban on out-of-state hazardous waste is

no quarantine law. Alabama did not ban hazardous wastes

from all other states on the ground that the wastes were dan-

gerous to some human health or environmental aspect which

Alabama has a right to regulate. Alabama’s ban does not dis-

tinguish on the basis of type of waste or degree of dangerous-

ness, but on the basis of the state of generation. The Holley

Bill discriminates against interstate commerce.

3. Congressional Authorization

A state statute that erects a barrier to interstate commerce

may nonetheless be upheld where Congress authorizes the

state to regulate in such a manner. “Where state or local gov-

ernment action is specifically authorized by Congress, it is not

subject to the Commerce Clause even if it interferes with in-

terstate commerce.” White v. Massachusetts Council of Constr.

Employers, Inc., 460 U.S. 204, 103 S.Ct. 1042, 75 L.Ed.2d 1

(1983). “Congress may redefine the distribution of power over

interstate commerce by permitting the states to regulate the

commerce in a manner which would otherwise not be permis-

sible. South-Central Timber Devel., Inc. v. Wunnicke, 467 U.S. 82,

87-88, 104 S.Ct. 2237, 2240, 81 L.Ed.2d 71 (1984). Such con-

gressional intent or authorization for states to affect interstate

commerce, however, must be “expressly stated” and “unmis-

takably clear.” Jd. at 91, 104 S.Ct. at 2242; see also White, 460

U.S. at 212-13, 103 S.Ct. at 1046-47 (city’s requirement that

certain percentage of work on public construction projects be

done by local labor did not violate commerce clause because

federal urban development programs “affirmatively sanc-

tioned” improved opportunities for the poor, minorities, and

unemployed. So, our task at this point is to determine

whether Congress has authorized Alabama to erect its barrier

to the interstate movement of hazardous wastes.

A-14

Defendants contend that SARA’s section 104(c) (9) effected

a redistribution of power over interstate commerce. Accord-

ing to defendants, the SARA amendments to CERCLA gave

the states more responsibility for hazardous waste manage-

ment, including an obligation to develop increased treatment

_and disposal capacity. But nothing in SARA evidences con-

gressional authorization for each state to close its borders to

wastes generated in other states to force those other states to

meet federally mandated hazardous waste management re-

quirements.’® SARA places the burden of making capacity as-

surances for future hazardous waste management on the gen-

erating stale and imposes a sanction on that state for failure to

satisfy its obligation.’’ Congress has not, in our opinion, au-

thorized Alabama to restrict the free movement of hazardous

wastes across Alabama’s borders. See State of Alabama v. United

States EPA, 871 F.2d at 1555 n. 3 (“Although Congress may

override the commerce clause by express statutory language,

it has not done so in enacting CERCLA.” (citing Wunnicke,

467 U.S. at 82, 104 S.Ct. at 2237)). If Congress intended to

allow the states to restrict the interstate movement of hazard-

ous wastes as Alabama has tried to do, Congress could (and

still can) plainly say so.”

"Defendants point out that, after the enacument of the Holley Bill,

North Carolina took steps toward the creation of additional hazardous

waste disposal facilities within its borders. See Ch. 168, 1989 North Carolina

Session Laws. Even if, as defendants claim, this action was motivated in

part by the Holley Bill, we reject defendants’ argument that this activity

legitimates Alabama’s attempts to enforce the federal capacity assurance

requirements sect out in section 109(c). See Wisconsin Dep't of Indus. v.

Gould, Inc., 475 U.S. 282, 286, 106 S.Ct. 1057, 1061, 89 L.Ed.2d 223 (1986)

(states may not impose penalties on conduct already penalized under fed-

eral statutory scheme).

"The sanction, withholding of funds for remedial cleanups of

Superfund sites on the National Priorities List, seems effective because, in

March 1989, almost every state had at least one site on this list. See 40

C.F.R. Part 300, App. B (1989).

"For example, under the Low-Level Radioactive Waste Policy Act, 42

U.S.C. §§ 2021b-2021j (1982 & Supp. V 1987), states are encouraged to

A-15

Il. THE CHALLENGED REGULATIONS

A. BACKGROUND

While CERCLA is designed to cleanup unsafe hazardous

waste sites, the federal Resource Conservation and Recovery

Act of 1976 (“RCRA”), 42 U.S.C. §§ 6901-6992k (1982 & Supp.

V 1987), provides a “cradle-to-grave” regulatory program.

RCRA sets minimum standards for the generation, treatment,

storage, and disposal of hazardous wastes in the nation. Faced

with a “growing body of evidence that land disposal of hazard-

ous wastes ... in many cases poses grave threats to public

health and the environment,” H.R.Rep. No. 98-198, Part 1,

98th Cong., 2d Sess. 20, reprinted in 1984 (U.S.Code Cong.

Admin. News 5576, 5578 (emphasis added), Congress

amended RCRA in 1984, prohibiting the disposal of certain

highly toxic and mobile hazardous wastes in landfills unless

those wastes are first treated to reduce toxicity and mobility

using the best available demonstrated technology. See 42

U.S.C. § 6924(d)-(m). Because of a nationwide shortage of

other types of disposal capacity and the time involved to

implement advanced pretreatment programs, EPA exempted

from this “land disposal ban” certain waste soil and debris

generated in cleanups conducted under CERCLA and in cor-

rective actions taken under RCRA until November 5, 1990. See

42 U.S.C. § 6924(h); 40 C.F.R. § 268; Land Disposal Restric-

tions for First Third Scheduled Wastes, 53 Fed.Reg. 31,137, at

31,143 (Aug. 17, 1988). In the language of EPA, the agency

granted “variances” from the effective date of the land dis-

posal ban for these certain wastes.

enter into regional compacts to provide for the establishment and opera-

tion, of regional disposal facilities for low-level radioactive waste. 42 U.S.C.

§ 2021d. In this Act, which predates SARA, Congress expressly authorized

States that enter into such compacts to ban waste shipments from states

that neither enter into a compact nor meet federal deadlines for establish-

ing their own facilities. 42 U.S.C. § 202le(e) (2), (f) (1).

A-16

Corresponding to Congress’s amendment of RCRA impos-

ing the land disposal ban, Alabama amended its hazardous

waste program by adopting the challenged land disposal re-

striction (“LDR”) regulations, AlaAdmin.Code r. 14-9-.03.

The LDR regulations are almost identical to the federal land

disposal ban, except that Alabama did not adopt EPA’s vari-

ances from the effective date of the ban for certain CERCLA

and RCRA wastes. Alabama’s prohibition of the land disposal

of untreated wastes became effective August 24, 1989.

For the expressed purpose of facilitating enforcement of

the LDR regulations, Alabama adopted the challenged pre-

approval regulations, Ala.Admin.Code r. 14-3-.08.'° These

regulations prohibit a commercial hazardous waste manage-

ment facility in Alabama from accepting wastes without spe-

cific pre-approval from the state. The regulations require that

the generator of hazardous waste which is destined for dis-

posal at a commercial facility in Alabama must apply for ap-

proval at least sixty days in advance of the shipment. The

'*Alabama’s stated rationale for adopting the pre-approval regulations

was to “verify that all waste is properly classified and waste that is subject to

the land ban requirements is properly identified and has or will receive

proper pretreatment.” Rationale for Adoption of Emergency Hazardous

Waste Regulations, Alabama Dep’t of Envi. Management. R-I-17-Exh. D.

Alabama determined that it could not adequately enforce the LDR regula-

tions without a pre-approval process. See Transcript of Public Meeting of

the Envd. Management Comm'n on Proposal for Adoption of Emergency

Amendments to Hazardous Waste Regulations, Aug. 16, 1989. R-I-17-Exh.

The pre-approval regulations were originally adopted as emergency

regulations under authority of Ala.Code §§ 22-22A-5 to -8, 22-30-11, & 41-

22-5(b) (1984 & Supp. 1989); essentially identical permanent regulations

have since been approved. Defendants contend that plaintiffs’ challenge

to the emergency pre-approval regulations is therefore moot. We reject

this contention based on the Supreme Court’s ruling that, when tempo-

rary regulations are superseded by substantially identical permanent regu-

lations, the case is not moot so long as both sets of regulations present the

same constitutional questions. Panama Refining Co. v. Ryan, 293 U.S. 388,

413-14, 55 S.Ct. 241, 245, 79 L.Ed. 446 (1935).

———— ee

A-17

generator does not need approval for each shipment, but

must have approvai for each waste stream, defined as “a waste

of given characteristics that is unique to a particular process

or individual generation site.” Ala.Admin.Code r. 14-3-.08(5).

Approval is valid for up to one year and can be renewed.

The pre-approval requirement allows Alabama to identify

the wastes being disposed and to determine whether the

wastes must be pretreated in accordance with the LDR regula-

tions. The pre-approval regulations apply equally to wastes

generated in Alabama and out of state, but no limitation is

expressed on how long Alabama can wait before issuing its

approval decision.

As a result of the LDR regulations, plaintiff ChemWaste

claims that it has been forced to refuse shipments of waste

from at least seven CERCLA or RCRA sites that are undergo-

ing cleanups, even though it would have been able to accept

those wastes at Emelle under the federal regulations.

ChemWaste says that it has been forced to refuse new requests

for waste disposal, as well as to refuse to fulfill its obligations

under preexisting waste disposal contracts.

The district court below, without expressly discussing the

challenged regulations, concluded that the regulations were

constitutional. The district court’s Memorandum Opinion ad-

dressed only the Holley Bill, but the court’s Final Order said

that all three challenged actions were constitutional. On ap-

peal, Alabama made it clear that the challenged regulations

are separate from and were not enacted to implement the

Holley Bill.'* After conducting a separate consideration of

plaintiffs’ claims regarding the regulations, we disagree with

“The pre-approval regulations may implement the Holley Bill to the

extent that the regulations allow Alabama to identify the origin of hazard-

ous wastes. But because this effect seems incidental and because the stated

purpose of the pre-approval regulations is to facilitate enforcement of the

LDR regulations, we decline to strike the pre-approval regulations on the

basis that the Holley Bill is unconstitutional.

A-18

the district court. To the extent that the LDR regulations fail

to allow the same variances as those granted by EPA, the regu-

lations are preempted and thus violate the supremacy clause.

The independent effect of the pre-approval regulations,

which require all waste generators to obtain the state’s pre-

approval before disposing of wastes at commercial facilities in

Alabama, places an impermissible burden on interstate com-

merce. These pre-approval regulations are, therefore, also un-

constitutional.'°

B. LDR REGULATIONS

“[W]hen a state’s exercise of its police power is challenged

under the Supremacy Clause, ‘we start with the assumption

that the historic police powers of the States were not to be

superseded by the Federal Act unless that was the clear and

manifest purpose of Congress.’” Ray v. Atlantic Richfield Co.,

435 U.S. 151, 157, 98 S.Ct. 988, 994, 55 L.Ed.2d 179 (1978).

No such congressional purpose exists to preempt the entire

field of interstate waste management, “either by express statu-

tory command, or by implicit legislative design.” City of Phila-

delphia, 437 U.S. at 621 n. 4, 98 S.Ct. at 2534 n. 4 (citations

omitted). RCRA expressly says that “[n]othing in this chapter

shall be construed to prohibit any State . . . from imposing any

requirements ... which are more stringent than [RCRA].” 42

U.S.C. § 6929. This language prevents a conclusion that Con-

gress preempted all state regulation of hazardous waste man-

agement. See ENSCO, Inc. v. Dumas, 807 F.2d 743, 744-45 (8th

Cir. 1986); see also 42 U.S.C. § 6902(a)(7) (objectives of RCRA

— protecting health and environment and conserving valu-

Defendants contend that plaintiffs cannot properly challenge

Alabama’s regulations. in this court because plainuffs have not exhausted

their administrative remedies. But there is no general requirement of ex-

hausting administrative remedies before bringing a federal suit to invali-

date state actions as unconstitutional. See Alleghany Corp. v. Haase, 896 F.2d

1046, 1050 (7th Cir. 1990).

A-19

able material and energy resources — are accomplished in

part by establishing a viable federal-state partnership);

H.R.Rep. No. 1491, 94th Cong., 2d Sess. 33, reprinted in U.S.

Code Cong. & Admin. News 6238, 6271 (1976) (“federal pre-

emption of this problem is undesirable, inefficient, and dam-

aging to local initiative”).

But in the 1984 amendments to RCRA, Congress did pre-

empt Alabama’s specific action of implementing a state land

disposal ban that omits the variances ordered by EPA. In the

RCRA amendments, Congress granted the EPA Administrator

authority to establish an effective date for the land disposal

ban different from the effective date which would have other-

wise applied under the RCRA amendments. 42 U.S.C.

§ 6924(h) (2). Congress wrote that such alternative effective

date must “be established on the basis of the earliest date on

which adequate alternative treatment, recovery, or disposal

capacity which protects human health and the environment

will be available.” /d.

Congress granted EPA alone the power to grant variances

from the effective date for certain types of wastes because the

lawmakers intended for the assessment of available pretreat-

ment capacity to be made on a nationwide basis: “The avail-

able capacity determination is to be done on a national basis.

Otherwise, different regions of the country would be receiving

varying degrees of protection and could be used as a dumping

ground for the rest of the county.” S.Rep. No. 284, 98 Cong.,

Ist Sess. 19 (1983). When promulgating its regulations con-

cerning the variances, EPA clearly stated the respective roles

of EPA and the states: “The Administrator of EPA is solely

responsible for granting variances to the effective dates [of

the land disposal ban] because capacity determinations must

be made on a nationwide basis.” 53 Fed.Reg. 31,137, at 31,203

(Aug. 17, 1988). Alabama’s LDR regulations attempt to “re-

gionalize” pretreatment requirements, action which Congress

expressly disapproved. See S.Rep. 284, 98th Cong., ist Sess. 19

(1983). These regulations may not be lawfully enforced.

A-20

C. PRE-APPROVAL REGULATIONS

The pre-approval regulations supplement the LDR regula-

tions: the pre-approval regulations require waste generators to

obtain Alabama's approval before disposing of wastes at com-

mercial facilities in Alabama. These regulations place an im-

permissible burden on interstate commerce.

We begin by recognizing that the pre-approval regulations

apply equally to in-state and out-of-state waste generators. The

regulations state that “[e)ffective November 30, 1989, all gen-

erators ... must have approval for disposal by the Depart-

ment, prior to disposal of any given waste stream.”

Ala.Admin.Code r. 14-3-.08(3). Plaintiffs, who have the bur-

den of proving that Alabama’s actions discriminate against

interstate commerce, see Hughes v. Oklahoma, 441 U.S. 322,

336, 99 S.Ct. 1727, 1736, 60 L-Ed.2d 259 (1979), make no

allegation that Alabama has somehow favored in-state waste

generators by the state’s application of these regulations, for

example, by delaying or denying altogether requests from out-

of-state generators.

Where the challenged state action does not on its face dis-

criminate against interstate trade, we apply a balancing test to

determine if the challenged acts violate the commerce clause:

“Where the statute regulates even-handedly to effectuate a

legitimate local public interest, and its effects on interstate

commerce are only incidental, it will be upheld unless the

burden imposed on such commerce is clearly excessive in re-

lation to the putative local benefits.” Pike, 397 U.S. at 142, 90

S.Ct. at 847. If we find a legitimate local purpose, “the extent

of the burden that will be tolerated will of course depend on

the nature of the local interest involved, and on whether it

could be promoted as well with a lesser impact on interstate

activities.” Jd.

The pre-approval regulations impose a significant burden

on the business of hazardous waste disposal. Under RCRA,

generators must dispose of hazardous wastes within ninety

days of generation or obtain a RCRA permit for hazardous

A-21

waste storage. See 40 C.F.R. § 262.34 (1989). Because the pre-

approval regulations set no limit on how long Alabama can

delay in responding to a request for approval, the pre-ap-

proval process can cause waste generators who wish to dispose

of wastes in Alabama to expend time and money not only in

complying with Alabama’s special requirements, but also in

complying with federal regulations that might not ordinarily

come into play. In addition, Alabama can delay so long jn

granting a decision on approval that the regulations can ‘be

used to bar waste disposal completely in Alabama, forcing

waste generators to take their waste elsewhere or to stop pro-

ducing waste. The risk of long delay in approval is increased

by the fact that the pre-approval regulations nowhere define

the criteria by which Alabama will approve or disapprove a

waste generator’s request.

Because the regulations impose substantial economic bur-

dens on both intrastate and interstate commerce, the local

benefits must be great for these regulations to be valid.

Alabama’s only formally stated reason for adoption of the

regulations — and the only reason argued to this court — was

to facilitate enforcement of the LDR regulations, which are

themselves unenforceable. We must conclude that the pre-

approval regulations are too burdensome when compared to

the local benefit and, therefore, invalidate the regulations as

contrary to the Constitution.

Ill. CONCLUSION

Minimizing the dangers to public health and the environ-

ment created by uncontrolled an untreated hazardous wastes

is an important task facing society. But Alabama's statute ban-

ning wastes selectively, based on state of origin, and the state’s

substantially burdensome pre-approval regulations cannot

stand in the face of the Constitution’s commerce clause. How-

ever honorable and well intentioned Alabama’s leaders might

be in coming to grips with environmental problems, “it is the

duty of the courts to guard vigilantly against any needless in-

A-22

trusion” on “the protection afforded [interstate commerce}

by the federal Constitution.” Bowman, 125 U.S. at 492, 489

S.Ct. at 702. In addition, Alabama’s regulation of hazardous

waste land disposal is preempted by “the clear and manifest

purpose of Congress” that EPA have the power to grant vari-

ances from the effectiveness of the land disposal ban on a

nationwide basis. In such a case, “[u]nder the Constitution .. .

the state law must yield to the federal.” Jones v. Rath Packing

Co., 430 U.S. 519, 543, 97 S.Ct. 1305, 1318, 51 L.Ed.2d 604

(1977). The Constitution, here specifically the commerce and

supremacy clauses, may not be encroached upon, even in an

attempt to do something good for the environment.

We VACATE summary judgment for defendants, REMAND

to the district court, and — because no material issues of fact

remain — instruct the district court to enter summary judg-

ment for plaintiffs.

A-23

APPENDIX B

UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

90 - 7047

Feb. 7,1991

NATIONAL SOLID WASTES MANAGEMENT ASSOCIA-

TION, and Chemical Waste Management, Inc., Plaintiffs-

Appellants,

The ALABAMA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT; Leigh Pegues, Individually and as Direc-

tor of the Alabama Department of Environmental Manage-

ment; and Guy Hunt,Individually and as Governor of Ala-

bama, Defendants-Appellees.

—_

BY THE COURT:

While rehearing is unwarranted, the possibility that por-

tions of this case have been mooted has made necessary a

modification of our original opinion.

I. Mootness

Recognizing our continuing “duty to review [the] jurisdic-

tion of an appeal at any point in the appellate process,” Wahl

v. Mclver, 773 F.2d 1169, 1173 (11th Cir.1985), we asked for

briefs on the question of whether part of this case became

moot on November 8, 1990. See Order, No. 90-7047 (Nov. 5,

1990).'

‘Our obligation to review our jurisdiction is not relieved by the issuance

of the original panel opinion because the mandate in this case has not yet

issued. In re Ghandichi, 705 F.2d 1315, 1316 (11th Cir.1983) (mootness can

A-24

As described in our opinion, see National Solid Wastes Man-

agement Ass'n v. Alabama Dep't of Envil. Management, 910 F.2d

713, 722-23 (11th Cir.1990), the Environmental Protection

Agency (“EPA”) granted for certain wastes a national variance

from the timetable for implementing the “land disposal ban”

enacted by Congress in 1984. See 40 C.F.R. § 268; 42 U.S.C. §

6924(h) (authorizing EPA variances). This ban prohibited the

disposal of toxic and hazardous wastes unless those wastes

were first treated to reduce toxicity and mobility. Alabama

amended its hazardous waste program by adopting the chal-

lenged land disposal restriction (“LDR”) regulations, but the

state did not adopt the EPA variances. See Ala.Admin.Code R.

14-9-.03.

In this lawsuit, plaintiffs challenged the Alabama LDR regu-

lations, located at Ala.Admin.Code R. 14-9-.03(1)-(3), that did

not adopt EPA variances for waste soil and debris generated

in cleanups conoucted under the Comprehensive Environ-

mental Response, Compensation, and Liability Act

(“CERCLA”) and in corrective actions under the Resource

Conservation and Recovery Act (“RCRA”).? The EPA variances

require dismissal even “where mootness occurred after an appellate court

had issued a decision but before the losing party. could seck an en banc

reconsideration and before the mandate had issued”).

*The Alabama LDR regulations and EPA variances at issue in this lawsuit

involve only two categories of wastes: (1) solvent- and dioxin-containing

soil and debris from CERCLA responses or RCRA corrective actions, and

(2) soil and debris contaminated with “California list” wastes from

CERCLA response actions or RCRA corrective actions. See Complaint at

Para. 21 (“This nationwide exclusion or variance thus covers’ CERCLA

wastes’ and ‘California list wastes’.”); id. at Para (“These [LDR] regulations

became effective August 24, 1989, thus prohibiting the land disposal! of

CERCLA and RCRA wastes and California list wastes at [ plaintiff's) facility

at Emelle, Alabama ... ”). Though plaintiffs have suggested that their

lawsuit also challenged a conflict between federal and state regulation of

another category of wastes, called “First Third wastes,” we have found no

support for that contention in the pleadings or in the district court's

ruling below.

In their brief on the issue of mootness, plaintiffs also implied that the

lawsuit challenged the broader language contained in another LDR provi-

ieee es

A-25

for these wastes expired on November 8, 1990. See 53 Fed.Reg.

31,137, at 31,196-97 (Aug. 17, 1988). As a result, there is now

no conflict between the challenged state LDR regulations and

the relevant federal EPA regulations.

Defendants argue that because Alabama’s challenged LDR

regulations are now in harmony with the corresponding EPA

regulations, the constitutional challenge to the LDR regula-

tions on preemption grounds is moot. But, plaintiffs claim

that the circumstances of this case fall within the “capable of

repetition, yet evading review” exception to the mootness doc-

trine. We agree with plaintiffs and, therefore, decline defen-

dants’ invitation to revisit that portion of our opinion.

At the outset, we note that plaintiffs “have sought, from the

very beginning, declaratory relief as well as an injunction,”

thereby requiring us “to decide the appropriateness and the

merits of the declaratory request irrespective of [our] conclu-

sion as to the propriety of the injunction.” See Super Tire Engi-

neering Co. v. McCorkle, 416 U.S. 115, 121, 94 S.Ct. 1694, 1698,

40 L.Ed.2d 1 (1974) (emphasis in original). The Supreme

Court has held that where the need for injunctive relief is

apparently mooted,

The [remaining] question is ‘whether the facts al-

leged, under all the circumstances, show that there is

a substantial controversy, between the part cs having

adverse legal interests, of sufficient immediacy and

reality to warrant the issuance of a declaratory judg-

ment.’ And since this case involves governmental ac-

tion, we must ponder the broader consideration

whether the short term nature of that action makes

the issues presented here ‘capable of repetition, yet

sion as well. See Ala.Admin.Code 14-9-.06 (“All wastes subject to the dis-

posal restriction of 40 C.F.R. Part 268 must have the mandated pretreat-

ment of 40 C.F.R. Part 268 prior to land disposal in the Sate of Alabama.”).

This section was adopted several months after this lawsuit was filed, how-

ever; and we see no indication from the pleadings that this regulatory

provision was a subject of this suit.

A-26

evading review,’ so that petitioners are adversely af-

fected by government ‘without a chance of redress.’

Id. at 122, 94 S.Ct. at 1698 (citations omitted).

To satisfy the “capable of repetition, yet evading review”

exception to mootness, the Supreme Court has required that

(1) there be a “reasonable expectation’ or a ‘demonstrated

probability’ that the same controversy will recur involving the

same complaining party,” and that (2) the “challenged action

[is] in its duration too short to be fully litigated prior to its

cessation or expiration.” Murphy v. Hunt, 455 U.S. 478, 482-

83, 102 S.Ct. 1181, 1183-84, 71 L.Ed.2d 353 (1982) (citations

omitted).

The first part of this test has already been satisfied. Though

there is no longer a live controversy over disharmony between

EPA variances and the challenged LDR regulations, the EPA

has already adopted additional national variances exempting

from pretreatment requirements other types of hazardous

wastes. See 40 C.F.R. § 268.34(d) (variance for “Second Third

wastes”); 54 Fed.Reg. 26,594, at 26,639-40 (June 23, 1989)

(same); 40 C.F.R. § 268.35(d), (e), (h) (variance for “Third

Third wastes”); 55 Fed.Reg 22,520, at 22,533, 22,649-50 (june

1, 1990) (same). Alabama has once again adopted the na-

tional pretreatment standards for these additional types of

wastes, and Alabama has once again rejected the EPA-granted

variance. See Ala.Amin.Code R. § 14-9-.03(5)-(6). Alabama has

also adopted two LDR regulations since this lawsuit was filed

that purport to reject EPA variances inconsistent with Ala-

bama LDR regulations. See Ala.Admin.Code R. 14-9-.06 (“All

wastes subject to the disposal restrictions of 40 C.F.R. Part 268

must have the mandated pretreatment of 40 C.F.R. Part 268

prior to land disposal in the State of Alabama.”); id. §14-9-.00

(“Any provision of 40 C.F.R. which is inconsistent with the

provisions of [] Administrative Code Rule 335-14-9-.06 is not

incorporated herein by reference.”). The parties in this case

are still involved in ongoing disputes about the extent to

which a state, given EPA regulations and variances on point,

A-27

can interfere with the operation of waste disposal facilities.

Thus, a sufficient likelihood exists that plaintiffs will again be

harmed “in a similar way.” See generally Honig v. Doe, 484 U.S.

305, 323, 108 S.Ct. 592, 604, 98 L.Ed.2d 686 (1988) (discuss-

ing “capable of repetition” standard).

The second part of the “capable of repetition, yet evading

review” test is also satisfied by the facts of this case. The his-

tory of this litigation suggests that EPA variances are probably

too short-lived for the conflict between the federal and state

regulation to be resolved by careful consideration in federal

court before the variances expire and the conflict disappears.

For example, the existing EPA variance for “Second Third

wastes” expires on June 8, 1991, see 54 Fed.Reg. at 26,639-40,

and the Alabama regulation that did not adopt this variance

was enacted on October 31, 1990, leaving only a little more

than seven months for judicial resolution of the state-federal

conflict.

Because we see the controversy involved here as one “ca-

pable of repetition, yet evading review,” we rejects defendants’

suggestion that the portion of our opinion addressing the

challenge to certain of Alabama’s LDR regulations has be-

come moot. We believe incidentally that our discretion in de-

ciding the issue of mootness is particularly broad when, as

here, there are other issues in the appeal that are plainly not

moot so that we are not faced with the question of the exist-

ence of a case or controversy for the purposes of jurisdiction

over the appeal as a whole. See generally Powell v. McCormack,

395 U.S. 486, 495-500, 89 S.Ct. 1944, 1950-53, 23 L.Ed.2d 491

(1969) (“Where one of the several issues presented becomes

moot, the remaining live issues supply the constitutional re-

quirement of a case or controversy.”).

Il. Pre-Approval Regulations

Even though we decide today not to revisit the portion of

our original opinion addressing the challenge to Alabama’s

LDR regulations, we agree with defendants that we must re-

A-28

consider our holding on the constitutionality of Alabama’s

“pre-approval regulations.” As outlined in our original opin-

ion, 910 F.2d at 722-25, the pre-approval regulations require

waste generators to obtain Alabama’s approval before dispos-

ing of wastes at commercial facilities in Alabama. See

Ala.Admin.Code R. 14-3-.08.

We held that the pre-approval regulations did not facially

discriminate against interstate commerce, requiring us to de-

termine their constitutionality by use of a balancing test: “if we

find a legitimate local purpose, ‘the extent of the burden [on

interstate commerce] that will be tolerated will of course de-

pend on the nature of the local interest involved, and on

whether it could be promoted as well with a lesser impact on

interstate activities."” 910 F.2d. at 724 (emphasis added)

(quoting Pike v. Bruce Church, Inc. 397 U.S. 137, 142, 90 S.Ct.

844, 847, 25 L.Ed.2d 174 (1970)). We noted that “Alabama's

only formally stated reason for adoption of the regulations—

and the only reason argued to this court—was to facilitate

enforcement of the LDR regulations, which are themselves

unenforceable.” 910 F.2d at 725. With the expiration of the

several EPA variances, at least a portion of the LDR regula-

tions are now in harmony with EPA regulations and are law-

fully enforceable. As a result, our stated reason for concluding

there existed no local purpose for the pre-approval regula-

tions has been undercut.

The district court did not address what burden the pre-

approval regulations imposed on interstate commerce, con-

cluding without comment that both the LDR regulations and

pre-approval regulations were constitutional. The extent of

the burden on commerce was not a material issue in our

original opinion because the pre-approval regulations lacked

a legitimate local purpose. After reviewing the record, we are

convinced that there now exists a genuine issue of material

fact: the extent of the burden imposed on interstate com-

merce by the pre-approval regulations.

Our original opinion disposed of the challenge to the pre-

approval regulations by vacating summary judgement for de-

A-29

fendants and remanding to the district court. Because “no

material issues of fact remain[ed],” 910 F.2d at 725, we in-

structed the district court to enter summary judgement for

plaintiffs. We now modify that disposition as follows: part II-C

of our original opinion is hereby withdrawn; the district

court’s grant of summary judgement to defendants on the

constitutionality of the pre-approval regulations is VACATED;

and we REMAND to the district court for further proceedings

on the remaining issues: the extent of the burden imposed by

the pre-approval regulations on interstate commerce and the

constitutionality of those regulations.

Except to the extent that our original opinion has been

modified in this order, the petition for rehearing is DENIED.

IT IS SO ORDERED.

A-30

APPENDIX C

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ALABAMA

89-G-1722-W

Jan. 12, 1990

NATIONAL SOLID WASTES MANAGEMENT ASSOCIA-

TION, and Chemical Waste Management, Inc., Plaintiffs,

Vv.

The ALABAMA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT; Leigh Pegues, as Director of the Alabama

Department of Environmental Management; and Guy

Hunt, as Governor of Alabama, Defendants.

MEMORANDUM OPINION

GUIN, District Judge.

During the last four decades the United States has had to

reevaluate its attitude toward conservation of its natural re-

sources and protection of the environment. As public aware-

ness has increased, numerous laws to protect the health and

welfare of the people and to protect the environment have

been enacted. In the early 1950’s the Public Health Service

Act, 42 U.S.C. § 241 (1970) was passed. By this legislation the

Surgeon General was empowered to promote and to coordi-

nate research and studies relating to the causes of pollution

and the prevention of diseases resulting therefrom.

In the next decade Congress enacted the Solid Waste Dis-

posal Act of 1965, Pub.L. No. 89-272, title II, 79 Stat. 997, 42

U.S.C. §§ 3251-3259 (1965), which directed the Department

of Health, Education and Welfare, under the auspices of the

Bureau of Solid Waste Management, “to provide technical

__e—

A-31

and financial assistance to States and local governments

. in the planning and development of resource recovery

and solid waste disposal programs.” Solid Waste Disposal Act

of 1965 § 3255 (Supp. I 1965), as amended, 42 U.S.C. § 3254a

(1970). The act defined solid waste as “garbage, refuse, and

other discarded solid materials, including solid-waste materi-

als resulting from industrial, commercial, and agricultural op-

erations, and from community activities, but does not include

solids or dissolved material in domestic sewage or other sig-

nificant pollutants in water resources.” 42 U.S.C. § 3252(4)

(1970).

The Resource Recovery Act of 1970 amended the Solid

Waste Disposal Act of 1965 to read “(1) to promote the dem-

onstration, construction, and application of solid waste man-

agement and resource recovery systems which preserve and

enhance the quality of air, water, and land resources; ... (4)

to provide for the promulgation of guidelines for solid waste

collection, transport, Beparation, recovery, and disposal sys-

tems.” 42 U.S.C. § 3251(b). This act established the Environ-

mental Protection Agency [hereinafter EPA] which took over

the functions of the Department of Health, Education and

Welfare’s Bureau of Solid Waste Management. Reorg. Plan

No. 3 of 1970, 3 C.F.R. 1072 (1966-1970 Compilation), re-

printed in 84 Stat. 2086 (1970), 42 U.S.C. § 4321 note.

In 1973, the EPA listed Sumter County as a good place for a

hazardous waste site because it sits on a thick layer of chalk.'

White, Who Ships Toxic Waste?, The Birmingham News, Novem-

ber 26, 1989, at 1, col. 2.

The Resource Conservation and Recovery Act of 1976

{hereinafter RCRA], Pub.L. No. 94-580, 90 Stat. 2795 (codi-

fied at 42 U.S.C.A. §§ 6901-6987 (West Supp. 1977), was the

"Water doesn’t pass easily through the 700 feet of chalk that lies between

the surface and the underground water. Mississippi has the same chalk

formations as Alabama. Georgia has lots of clay. White, Who Ships Toxic

Waste?, The Birmingham News, November 26, 1989, at 1, col. 2 (quoting

Buddy Cox who heads the Hazardous Waste Division for the Alabama

Department of Environmental Management).

A-32

congressional response to the solid waste management prob-

lem and the public’s attitude toward its disposition. “Everyone

wants us to pick up the trash, but no one wants us to put it

down.” Symposium on Resource Conservation and Recovery, House

Subcomm. on Transportation and Commerce of the House Comm. on

Interstate and Foreign Commerce, 94th Cong., 2d Sess. 6 (1976)

(quoted in W. Kovacs,” and J. Kluesik,> The New Federal Role in

Solid Waste Management: The Resource Conservation and Recovery

Act of 1976, 3-4 Colum.].Envt’l Law 205, 206 (1977). “The

Act’s primary focus is on the problems associated with munici-

pal solid waste, government procurement of recovered materi-

als, federal facilities, and hazardous waste.” Jd. at 221.

One objective of RCRA was to “preserve and enhance the

quality of air, water, and land resources.” 42 U.S.C.A. §

6902(7). To attain this, and other objectives, Congress set

four goals: 1) An Office of Solid Waste was established within

EPA; 2) A “cradle to grave” system for regulating hazardous

waste, to be administered by the federal government unless

the states decided to administer the programs, was estab-

lished; 3) The states were encouraged to establish solid waste

control plans including provision for closing open dumps;

and, 4) An expanded federal ruling in research and develop-

ment was continued. Anderson, The Resource Conservation and

Recovery Act of 1976: Closing the Gap, 78 Wis.L. Rev. 633, 646

(1978).

Under RCRA, EPA is required to establish minimum fed-

eral standards applicable to all who generate (42 U.S.C.A.

§6922), transport (42 U.S.C.A. § 6923), treat, store or dispose

(42 U.S.C.A. § 6924) of hazardous wastes. EPA is given the

authority to issue administrative orders or to file suit in

William L. Kovacs is the former Chief Counsel for the United States

House of Representatives Subcommittee on Transportation and Com-

merce.

‘John F. Kluesik is the former Special Assistant to the United States

House of Representatives Subcommittee on Transportation and Com-

merce.

ae A

A-33

order to enforce the minimum standards. The provisions re-

lating to hazardous wastes are mandatory. The term “hazard-

ous waste” means nonradioactive hazardous waste. Anderson,

78 Wis.L. Rev. at 639 (1978). RCRA defines it in the following

manner:

[A] solid waste, or combination of solid wastes,

which because of its quantity, concentration, or phys-

ical, chemical, or infectious characteristic may —

(A) cause, or significantly contribute to an in-

crease in mortality or an increase in serious irre-

versible, or incapacitating reversible, illness; or

(B) pose a substantial present or potential hazard

to human health or the environment when im-

properly treated, stored, transported, or disposed

of, or otherwise managed.

42 U.S.C.A. § 6903(5) (West Supp. 1977).

Kovacs and Kluesik make the following comments about

RCRA:

{W]ith hazardous waste there existed adverse health

effects coupled with little market demand for the

waste. The congressional intent respecting hazard-

ous waste was to regulate, since without such regula-

tion it would remain economically advantageous to

dispose of the hazardous wastes in an environmen-

tally unsound manner. The Act stresses planning and

coordination between neighboring jurisdictions and

among other environmental laws so that a future cri-

sis, such as cities running out of landfill, shortage of

materials, or the poisoning of drinking water sup-

plies can be avoided.”

Kovacs and Kluesick, 3-4 Colum.].Envt’l Law at 223.

In order to implement state plans Congress recognized the

necessity of overcoming the states’ move toward balkanization

over solid waste problems. It, therefore, offered incentives to

States to cooperate: financial aid and technical assistance. “If a

state does not develop or implement a solid waste manage-

A-34

ment plan for its municipal waste, it does not receive federal

financial or technical assistance. Under the Act the EPA has

no regulatory authority to require state implementation of

any federal standards relating to municipal waste manage-

ment.” /d. at 221. If a state does assume the responsibility for

implementing and enforcing the RCRA standards, in licu of

EPA, its program must be at least equivalent to the minimum

federal standards.* “The state standards can be more stringent

than the federal standards.” Kovacs and Kluesick, 3-4 Colum.].

Envt'l Law at 226. “[I)n states with their own programs, the

hazardous waste management requirements may be more

stringent than the federal regulations.” /d. at 228.

While an earlier draft of section 3009 of RCRA was entitled

“Preemption of State Law,” H.R.Rep. No. 14496, 94th Cong.,

2d Sess. (June 22, 1976), when the legislation was enacted, the

section was entitled “Retention of State Authority,” RCRA §

3009, 42 US.CA. § 6929 (1977), indicating it was not the

intention of Congress for RCRA to preempt state law. The

most clear-cut reference to preemption in the House report is

the following statement: “At this time federal preemption of

this problem is undesirable, inefficient, and damaging to local

initiative.” H.R.Rep. No. 94-1491, 94th Cong., 2d Sess. 33, re

printed in {1976} U.S. Code Cong. & Admin.News 6238, 6271.

Nor was federal preemption championed by EPA. In Resource

Recovery and Conservation Ad of 1976: Hearings on H.R. 14496

Before the Subcommittee on Transportation and Commerce of the

Committee on Interstate and Foreign Commerce, 94th Cong. 2d

Sess. (1976) (statement of Shelton Meyers, Deputy Assistant

Administrator for Solid Waste Management Programs, Envi-

ronmental Protection Agency), Mr. Shelton stated:

We note with interest the bill's emphasis on State

primacy in terms of hazardous wastes regulatory pro-

"RCRA § 3009, 42 US.CA. § 6929 (1977) reads: “Upon the effective

date of regulations under this subutle no State or political subdivision may

impose any requirements less stringent than those authorized under this

subchapter respecting the same matter as governed by such regulation.

. ot ee

A-35

gram operations. We also believe that strong State

regulatory programs are the most effective way to

assure appropriate management of state wastes.

Thus, the agency does not support a federally oper-

ated permit program or total Federal preemption of

ineffective State efforts.

Congress directed that the waste regulations must “protect

human health and the environment.” 42 U.S.C.A. §§ 6922-

6924. The regulations do not require EPA to consider eco-

nomic and technical limitations. “The decision to omit con-

sideration of the economic and technological limitations in

the development of the hazardous waste regulations may be

found in the legislative history of the Act. As reported from

the House Committee on Interstate and Foreign Commerce,

H.R.Rep. No. 14496, 94th Cong., 2d Sess. (1976), carried the

congressional directive to “reasonably protect human health

and the environment.” Kovacs and Kluesik, 3-4 Colum.].Envt'l

Law at 226. Since the Senate language differed, the compro-

mise omitted the word “reasonable.” The compromise set a

tougher standard. RCRA §§ 3002-3004, 42 U.S.C.A. §§ 6922-

6924 (West Supp. 1977).

Although RCRA does not give EPA authority to limit the

creation of hazardous waste, it does give EPA considerable

control over its actual management. Kovacs and Kluesik, 3-4

Colum.J.Enve'l Law at 228. States with hazardous waste plans

equivalent to EPA standards, however, may manage their own

programs. To assist them the act requires that federal guide-

lines be published. These guidelines are “not to preempt state

or local initiatives at managing the problem.” H.R.Rep. No.

94-1491, 94th Cong. 2d Sess. 33 (1976); S.Rep. No. 988, 94th

Cong., 2d Sess. 10 (1976), 1976 U.S.Code Cong. & Admin.

News p. 6271. The act requires that guidelines be set establish-

ing solid waste management regions. RCRA §§ 4002, 4004,

4005, 42 U.S.C.A. §§ 6942, 6944, 6945 (West Supp. 1977). The

purpose of these guidelines is to “assist States to identify and

develop appropriate areas within the State or interstate re-

gions for discarded materials planning.” H.R.Rep. No. 1491,

A-36

94th Cong., 2d Sess. 32-33 (1976), 1976 U.S.Code Cong. &

Admin.News pp. 6270, 6271. To receive federal assistance

RCRA requires solid waste regions be established. Regions are

based on EPA guidelines such as population, geography, vol-

ume of waste and means of transportation within the area.

RCRA § 4006(a), 42 U.S.C.A. § 6946(a) (West Supp. 1977).

RCRA further requires publication of guidelines to prevent

ground and surface water contamination. The guidelines are

aimed at providing at a minimum for “protection of the qual-

ity of ground waters and surface waters from leachates,” and

“protection of the quality of surface waters from runoff

through compliance with effluent limitations under the Fed-

eral Water Pollution Control Act.” RCRA §1008(a)(2)(B),

(C), 42 U.S.C.A. § 6907(a) (2)(B), (C) (West Supp. 1977).

In 1976 Congress expressed additional concern over the

environment by passage of the Toxic Substances Control Act

of 1976, {hereinafter TSCA] Pub.L. No. 94-469, S.Rep. No. 94-

698, 94th Cong., 2d Sess. 4, reprinted in 1976 U.S.Code Cong.

& Admin.News 4491, 4494, a comprehensive measure to pro-

tect the public and the environment from exposure to hazard-

ous chemicals. 1976 U.S.Code Cong. & Admin. News at 4493.

In making findings and stating the policy and intent of the

legislation, Congress noted the unreasonable risk of injury to

health’? and the environment by exposure to chemicals and

found regulation of such chemicals in interstate commerce

necessary. /d. at 4504.

The Comprehensive Environmental Response, Compensa-

tion, and Liability Act of 1980, Pub.L. No. 96-510, 94 Stat.

2767 (codified as amended at 42 U.S.C. §§ 9601-9675 (1982 &

Supp. IV 1986) [hereinafter CERLA], also known as the

“superfund” law, was enacted in 1980 and revised by the

Superfund Amendments and Reauthorization Act of 1986,

Pub.L. No. 99-499, 100 Stat. 1613 (1986) (amending scattered

*The act noted adverse effects of toxic chemicals on the human body

vary. Included among the effects are birth defects and genetic damage.

1976 U.S.Code Cong. & Admin.News at 4495.

———————————

+s -0 SentetiteniW Ghat. we

——

Se) ee Oe) Cem ee ‘ —

A-37

sections of 42 U.S.C. §§ 9601-9675 (Supp. IV. 1986) [hereinaf-

ter SARA]. CERLA’s “principal purpose is the cleanup of leak-

ing hazardous waste disposal sites.” R. Findley & D. Farber,

Environmental Law 169 (1988). An important part of CERLA is

federal negotiation with owners of sites of cooperative agree-

ments for cleanup. /d. at 172. These owners, in turn, may seek

recovery of cleanup costs from potentially responsible parties.

Of particular note is the observation that: “Offsite transport

and disposal of the hazardous substances or contaminated

materials are least favored where ‘practical {on-site} treatment

technologies’ are available.” Jd. at 172-73.

Pertinent to the case at bar is Section 9604(c)(9) Siting,

which reads as follows:

Effective 3 years after October 17, 1986, the Presi-

dent shall not provide any remedial actions pursuant

to this section unless the State in which the release

occurs first enters into a contract or cooperative

agreement with the President providing assurances

deemed adequate by the President that the State will

assure the availability of hazardous waste treatment

or disposal facilities which —

(A) have adequate capacity for the destruction,

treatment, or secure disposition of all hazardous

wastes that are reasonably expected to be generated

within the State during the 20-year period following

the date of such contract or cooperative agreement

and to be disposed of, treated, or destroyed,

(B) are within the State or outside the State in

accordance with an interstate agreement or regional

agreement or authority,

(D) are in compliance with the requirements of

subtitle C of the Solid Waste Disposal Act [42

US.C.A. § 1 et seq.)

SARA revitalized CERLA with the establishment of the Haz-

ardous Substances Superfund and funding of an additional

8.5 billion dollars. Note, Misery Loves Company: Spreading the

Costs of CERLA Cleanup, 42 Vand.L.Rev. 1469 (1989).

A-38

In 1984 Congress passed the Hazardous and Solid Waste

Amendments of 1984, Pub.L. No. 98-616, H.R.Rep. No. 98-

198, 98th Cong., 2d Sess. 5, reprinted in 1984 U.S.Code Cong.

& Admin.News 5576, 5640, which established a comprehen-

sive program to regulate the land disposal of hazardous

wastes. The act strives to see that hazardous wastes are man-

aged properly and “to ensure that land disposal is used only

for those wastes for which it can reasonably by [sic] antici-

pated to be protective of human health and the environment

in the very long term, even if there are no treatment alterna-

tives.” Sec. 5, 1984 U.S.Code Cong. & Admin.News p. 5640.

Land disposal of hazardous wastes, 1984 U.S.Code Cong. &

Admin.News at 5589. Subsection (c) empowers the Adminis-

trator to prohibit land disposal of specified hazardous wastes

“[bJased upon the Committee’s belief that land disposal is the

least desirable management practice.” 1984 U.S.Code Cong.

& Admin.News at 5590.

Soon thereafter, in May 1985, a nationwide ban prohibited

burying liquids in hazardous waste landfills. White, /s Emelle

Safe?, The Birmingham News, November 27, 1989, at 1, Col. 4.

In the same year Alabama saw a significant increase in haz-

ardous wastes shipped to the Emelle site in Sumter County, an

increase of less than 200 million pounds in 1978 to 682 mil-

lion pounds in 1985. White, Who Ships Toxic Waste?, The Bir-

mingham News, November 26, 1989, at 18A, col. 1. Shipments

of hazardous waste to Emelle continued to rise from the 1985

level to 912 million pounds in 1986, 1.13 billion pounds in

1987 and 1.10 billion pounds in 1988. Jd. An estimated 1.6

billion pounds of waste would be buried at Emelle in 1989. /d.

at 1, col. 2. All of this has resulted in the Emelle site, owned

by Chemical Waste Management, Inc. [hereinafter Chem-

Waste], having become the largest landfill site where toxic

waste is buried for a fee. White, at 18A, col. 1.° Shipments,

"According to Tite III of RCRA entitled Hazardous Waste Management,

Resource Conservation and Recovery Act of 1976, Pub.L. No. 94-580,

H.R.Rep. No. 94-1491, 94th Cong., 2d Sess. 11, reprinted in 1976 U.S.Code

eee

_ eG ee. eoetial

eR wa ee ie

A-39

which include more than 100 flammable, corrosive, poisonous

or cancer-causing chemicals, /d., at 18A, col. 2, are accepted

from America’s ten largest companies, 159 military bases and

other federal agencies, Alabama Power Company in Birming-

ham, Reynolds Metals in Sheffield, Occidental Chemical

Corp. in Mobile, and 217 other customers in Alabama. /d. at

1A, col. 2. Even so, less than three-tenths of one percent of

America’s toxic waste gets buried at Emelle.’ /d., at 18A, col.

In response to the “dumping” at Emelle, when faced with

the question of whether all of the states should bury their

wastes in Alabama or whether they should do something

about their wastes, the State of Alabama enacted Act No. 89-

788, known as the Holley Bill, to amend Alabama Code sec-

tion 22-30-11(b) (1975). The purpose of the bill is set forth in

the introductory paragraph which reads as follows:

[TJo provide for additional definitions and to pro-

hibit commercial hazardous waste treatment or dis-

posal facilities from accepting hazardous wastes gen-

erated in another state which prohibits the treat-

ment, storage, or disposal of hazardous wastes within

its own borders, or which refuses or fails to comply

with 42 U.S.C. § 9604(c)(9) of the Comprehensive

Environmental Response, Compensation, and Liabil-

ity Act, as amended, which requires each state to

adequately treat and dispose of all hazardous wastes

reasonably expected to be generated within that

state over the next 20 years through the establish-

ment of a hazardous waste treatment or disposal fa-

Cong. & Admin.News, 6238, many of the wastes can blind, cripple or kill.

1976 U.S. Code Cong. & admin. News at 6249. They can defoliate the

environment, contaminate drinking water supplies and enter the food

chain. Jd.

"Some of this percentage comes from states that have complied with

federal legislation previously outlined. The court, therefore, is being asked

to decide whether a partial ban on less than three-tenths of one percent is

an onerous burden on interstate commerce.

A-40

cility within the state of through the use of a hazard-

ous waste treatment of disposal facility located out-

side the state in accordance with an interstate agree-

ment or regional agreement or authority.

Because the court has been asked to determine the consti-

tutionality of the Holley Bill, pertinent portions are set forth

fully below:

Sec. 1. The legislature finds that:

(1) The generation, management, and disposal of

hazardous wastes is a cause of continuing concern to

the citizens of this state;

(2) The State of Alabama has a responsibility to pro-

tect the public health, welfare, and safety of its citi-

zens by and through the enactment of laws designed

to protect and preserve the environment from the

health risks and endangerments associated with the

treatment and disposal of hazardous wastes;

(3) The United States Congress, recognizing the seri-

ous health threats and risks posed by the treatment

and disposal of hazardous wastes to public health

and the environment, enacted the Comprehensive

Environmental Response, Compensation, and Liabil-

ity Act (“CERCLA”) 42 U.S.C. 9604(c)(9), as

amended, which requires that each state demon-

strate by October 17, 1989, that is [sic] has adequate

capacity to treat, destroy, or secure disposition of all

hazardous wastes reasonably expected to be gener-

ated within the state over the next 20 years through

the establishment of a hazardous waste treatment or

disposal facility located within its borders, or

through the use of a hazardous waste treatment or

disposal facility located outside the state in accor-

dance with an interstate agreement or regional

agreement or authority;

(4) In enacting the capacity assurance requirements,

Congress recognized that local pressures have im-

peded the siting of new hazardous waste treatment

and disposal facilities in the nation in the past sev-

a ee

eee atin De ais ei ee So

Se a OR ee

Se ee ee ee

A-41

eral years, and if the Federal Resource Conservation

and Recovery Act as amended (“RCRA”) and

CERCLA are to work properly, such additional sites

must be made available. Since Alabama is already

bearing far more than its fair share of the burden of

managing hazardous wastes, it is only equitable that

new capacity be developed in other states which have

failed to assume their own obligations to site such

facilities.

(5) Both Congress and the U.S. Environmental Pro-

tection Agency have recognized that the capacity as-

surance provisions of CERCLA would be used to

force the development of new capacity to manage

hazardous wastes. Implicit in the CERCLA capacity-

assurance procedure is a recognition that an import-

ing state might refuse to enter into an agreement

with an exporting state, requiring the exporting state

to create available capacity through waste reduction

or through siting new facilities, or enter into an

agreement with another state to manage these

wastes;

(6) The State of Alabama has enacted and imple-

mented an approved program for the handling and

disposal of hazardous wastes within its borders,

known as the “Hazardous Wastes Management and

Minimization Act,” and has established regulations

and guidelines for the treatment, storage, and dis-

posal of all hazardous wastes generated within the

state, and continues to evaluate and update those

regulations and guidelines;

(7) The State of Alabama, since 1978, has had an

adequate capacity for the destruction, treatment, or

secure disposition of all hazardous wastes that are

reasonably expected to be generated within the state

over the next 20 years-through the establishment

and continued existence of commercial hazardous

waste facilities within the state;

(8) The State of Alabama has, since 1978, accepted

for treatment and disposal, disproportionate

amounts of hazardous wastes generated within the

A-42

borders of other states which have not taken steps to

provide the assurance required by 42 U.S.C. [§]

9604(c) (9);

(9) The constant influx of large volumes of hazard-

ous wastes entering this state over and through con-

gested state, county, and municipal highways and

roads, coupled with the ever-increasing potential for

traffic accidents and mishaps involving hazardous

waste transporters, and the likelihood of leaks, spills,

and/or explosions of said hazardous wastes resulting

therefrom, altogether pose an unreasonable and un-

justifiable risk to the health, safety, and welfare of

Alabama's citizens;

(10) The State of Alabama lacks the financial re-

sources and trained personnel necessary to cope

with the serious dangers and risks associated with the

transportation within this state of the ever-increasing

volumes of hazardous wastes generated out of state,

and, as a consequence, it can no longer adequately

insure the safety and protection of its citizens from

these hazards;

(11) While the use of landfills for the disposal of

hazardous wastes is presently an approved method of

hazard[ous] waste management, the federal and

state governments are implementing phased bans on

land disposal and CERCLA describes the landfilling

of wastes as the least desirable regulatory technology;

(12) The State of Alabama has a genuine and signifi-

cant interest in protecting its citizens and its environ-

ment from the unencumbered influx of hazardous

waste generated in states which do not responsibly

provide for the treatment, storage, and disposal of

hazardous wastes within their own borders or which

refuse to enter into an interstate or regional agree-

ment to share the responsibilities of safe and effec-

tive hazardous waste management as required by

CERCLA, as amended;

(13) The State of Alabama is compelled by the ac-

tions of other states which refuse to responsibly pro-

te Dawe ry wed’

A-43

vide for hazardous waste treatment, storage, and dis-

posal within their own borders or fail to cooperate in

an interstate or regional plan for hazardous waste

management, to enact legislation establishing a com-

prehensive waste management program in compli-

ance with CERCLA, and which safeguards against

the irresponsibility of other states which do not have

adequate hazardous waste management programs by

prohibiting the treatment, storage, or disposal of

hazardous waste in Alabama which are generated in

a state which does not allow hazardous waste treat-

ment or disposal facilities within that state or which

has not entered into an interstate or regional agree-

ment to assure availability of hazardous waste treat-

ment or disposal facilities.

(14) The imposition of the requirements contained

in this legislation will encourage the development of

new waste disposal facilities in other states in accord

with the intentions of the Congress in enacting Sec-

tion 42 U.S.S. § 9604(c)(9), and will have the benefi-

cial effect of reducing, in an orderly manner, the

nation’s dependence on landfilling as a methodol-

ogy for disposing of hazardous wastes.

Section 2. Code of Alabama, 1975 as amended, § 22-

30-11, is hereby amended as follows:

§ 22-30-11(a) The department acting through the

commission, is authorized to promulgate, and may

revise when appropriate, rules and regulations,

guidelines, criteria and standards for all hazardous

waste management practices.

(b) /t ts unlawful for any person who owns or operates a

commercial hazardous waste treatment or disposal facility

within this state to dispose or treat any hazardous wastes

generated in any state outside the State of Alabama which:

(t) prohibits by law or regulation the treatment or dis-

posal of hazardous wastes within that state and which has

no facility permitted or existing within that state for the

treatment or disposal of hazardous wastes; or

A-44

(11) has no facility permitted or existing within that state

for the treatment or disposal of hazardous wastes; unless

that state has entered into an interstate or regional agree-

ment for the safe disposal of hazardous wastes pursuant to

the federal Comprehensive Environmental Response, Com-

pensation, and Liability Act. The department shall estab-

lish and maintain a list of states from which hazardous

wastes cannot be accepted for treatment or disposal pursu-

ant to this paragraph and there shall be no liability under

the paragraph for disposal of wastes from a state until

fifteen (15) days after a state has been listed by the Depart-

ment. Such list shall be publicly available and set forth the

reasons why each state is listed. The date on which a state is

included on such list shall be provided. The list of states

shall be revised monthly. The state of generation as shown

on the hazardous waste manifest shall be used in determin-

ing whether a person has treated or disposed of waste in

violation of this subsection, and any person who alters the

state of generation on any manifest or misrepresents the

state of generation of any hazardous waste for the purpose

of circumventing this statute shall be punishable in accor-

dance unth Section 22-30-19 herein.

mercial hazardous waste treatment or disposal facility oper-

aling in this state may contract with states other than the

State of Alabama in order to satisfy the capacity assurance

programs required by 42 U.S.C. § 9604(c)(9) of the Com-

prehensive Environmental Response, Compensation, and

Liability Act, as amended.”

(d) For the purpose of this section, the following addi-

tional terms are defined:

(1) AGREEMENT. Any interstate or regional contract

agreement made pursuant to capacity assurance require-

ments of Section 42 U.S.C. § 9604 (c)(9) of CERCLA and

which one of the signatories to such contract or agreement is

the State of Alabama.

(2) COMMERCIAL HAZARDOUS WASTE TREAT-

MENT OR DISPOSAL FACILITY. A facility which re-

ceives for disposal only, or for treatment and disposal, haz-

ardous wastes that are not generated on-site and to which

;

vy 2B

~ ne

A-45

facility a fee is paid or other consideration given for such

treatment or disposal .

(4) REGION(AL). Region(al) shall mean any or all of

the follourng states: Alabama, Arkansas, Florida, Georgia,

Kentucky, Louisiana, Mississippi, North Carolina, South

Carolina, and Tennessee.

(5) STATE OF GENERATION. A state of the United

States in which the hazardous waste is generated in the

form in which it ts received by a commercial hazardous

waste treatment or disposal facility located in Alabama for

treatment or disposal.

Pursuant to the enactment of the Holley Bill,’ in September

1989, Alabama banned importation of shipments of hazard-

ous waste which had originated in states which have laws or

regulations prohibiting the treatment or disposal of hazard-

ous waste within their states and which have no facility permit-

ted or existing within that state for the treatment or disposal

of hazardous waste or which have not entered into an

CERCLA agreement with Alabama. Although the ban prohib-

ited importation of hazardous waste from some 22 states and

the District of Columbia, it, nevertheless, affected less than

three-tenths of one percent of the waste previously disposed

of in Alabama.

Plaintiffs contend the Holley Bill is violative of the Constitu-

tion because it places restrictions on waste moving in inter-

state commerce. U.S. Const. art. I, section 8. In order to with-

stand this attack the state statute must require a legitimate

local public interest in the regulation. Anderson, 78

Wis.L.Rev. at 707. Plaintiffs rely on the holding in Philadelphia

v. New Jersey, 437 U.S. 617, 98 S.Ct. 2531, 57 L.Ed.2d 475

*The Holley Bill was passed by the Alabama House April 26, 1989, and

by the Alabama Senate on May 4, 1989. Governor Guy Hunt signed the bill

May 11, 1989. Except for Section 2(c) which became effective immediately

upon enacument, the act became effective 120 days after its passage.

A-46

(1978), in which the court struck down a New Jersey statute

prohibiting the importation of most solid or liquid waste

which originated or was collected outside the territorial limits

of the state as violative of the commerce clause. The court

reviewed the statute in light of passage of RCRA. The court

found that state law had not been preempted by the federal

legislation. It concluded that there was no “general incompat-

ibility [between the New Jersey statute and] basic federal ob-

jectives.” Jd. 98 S.Ct. at 2534 n. 4, 57 L.Ed.2d at 480 n. 4. The

court scrutinized the statute to determine whether it was basi-

cally a protectionist measure or a law directed toward legiti-

mate local concerns which affect interstate commerce. The

New Jersey Supreme Court interpreted the statute to be pro-

tective of the state’s environment, not her economy, and that

its substantial benefits outweighed the burden on interstate

commerce. The Supreme Court found that whatever the legis-

lative purpose it was not relevant to the constitutional issue if

the statute discriminated against interstate commerce, “unless

there is some reason, apart from their origin, to treat them

{out of state waste] differently.” /d. 98 S.Ct. at 2537, 57

L.Ed.2d at 483. The court held the New Jersey statute violated

the commerce clause. New Jersey was not allowed to isolate

herself from the national economy or accord her own citizens

preferential access to natural resources located within its bor-

ders. City of Philadelphia held a state may not impose restric-

tions On interstate commerce when those restrictions impose

on out-of-state commercial interests the full burden of con-

serving the state’s natural resources.? “What is crucial is the

attempt by one State to isolate itself from a problem common

to many be erecting a barrier against the movement of inter-

state trade.” Jd., 98 S.Ct. at 2537, 57 L.Ed.2d at 484.

*The Court in City of Philadelphia noted that it was expressing no opinion

about New Jersey's power, consistent with the commerce clause, “to re-

Strict to state residents access to state-owned resources...or... to spend

state funds solely on behalf of state residents and businesses.” 98 S.Ct. at

2537 n. 6, 57 L.Ed.2d at 484 n. 6. -

A-47

The harms caused by waste are said to arise after

its disposal in landfill sites, and at that point, as New

Jersey concedes, there is no basis to distinguish out-

of-state waste from domestic waste. If one is inher-

ently harmful, so is the other.

Id. 98 S.Ct. at 2538, 57 L.Ed.2d at 485. e

Since City of Philadelphia there have been other challenges

brought under the commerce clause. Harvey & Harvey v. Dela-

ware Solid Waste Authority, 600 F.Supp. 1369 (D.Del.1985), was

an equal protection and commerce clause challenge to regu-

lations adopted by the Solid Waste Authority. The plaintiffs

alleged the purpose of the act and the regulations drew a

distinction between solid waste depending on its geographic

origin. The act halted the flow of solid waste generated in

other states. Plaintiffs referred to the ruling in City of Philadel-

phia which had held solid waste constituted an item of consti-

tuted an item of interstate commerce. The court opined that

the rule was not woodenly applied and “is directed only to

state regulation whose primary effect is to confer a significant

benefit on in-state economic interests or to impose a signifi-

cant burden on out-of-state economic interests. Accordingly,

the question is not merely whether a distinction is drawn but

whether there is significant discrimination against out-of-state

economic interests.” 600 F.Supp. at 1389.

The court distinguished Harvey from City of Philadelphia by

saying that New Jersey prohibited all solid waste, in effect im-

posing on out-of-state interests the full impact of conserving

the natural resources of New Jersey. /d. The Harvey court con-

cluded the state regulation, purportedly directed toward state

health and environment, did not materially favor in-state eco-

nomic interest in spite of the incidental impact on interstate

commerce.

In J. Filiberto Sanitation, Inc. v. Dept. of Environmental Protec

tion, 857 F.2d 913 (3d Cir. 1988), a solid waste hauler brought

action seeking declaratory and injunctive relief with respect to

a rule under the New Jersey Solid Waste Management Act

which required deposit of waste collected in county at a trans-

A-48

fer station for processing and subsequent disposal. The court

felt that if the rule were genuinely aimed at the goal of allevi-

ating the trash crisis, and sought to achieve that goal without

transferring the burden of the solution to out-of-state inter-

ests, it was subject to the balancing test under Pike v. Bruce

Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d

174 (1970). Under Pike, the rule would be invalid only if the

incidental burden on interstate commerce is excessive in rela-

tion to the local benefits. 857 F.2d at 919.

Lefrancois v. State of Rhode Island, 669 F.Supp. 1204 (D.R.L

1987) also distinguished City of Philadelphia. The court de-

voted a section to a discussion of the commerce clause. “Con-

gress shall have power ... to regulate Commerce with foreign

Nations, and among the several states, and with the Indian

tribes... ."U.S. Const. art. 1, § 8. The interpretation restricting

state regulation is referred to as the “dormant” commerce

clause. The Supreme Court has developed a two part dormant

clause analysis.

Where the statute regulates even-handedly to effectu-

ate a legitimate local public interest, and its effects

on interstate commerce are only incidental, it will be

upheld unless the burden imposed on such com-

merce is clearly excessive in relation to the putative

local benefits. If a legitimate local purpose is found,

then the question becomes one of degree. And the

extent of the burden that will be tolerated will of

course depend on the nature of the local interest

involved, and on whether it could be promoted as

well with a lesser impact on interstate activities.

Id. at 1207 (quoting Pike v. Bruce Church, Inc., 397 U.S. 137,

142, 90 $.Cu. a4, 25 L.Ed.2d 174 (1970) (citations omitted).

Lefrancois concluded that whatever the purpose of the stat-

ute was that it could not be accomplished by discriminating

against articles from out of the state on the basis of their

origin unless there was some reason to treat them differently.

The court concluded that the statute had the effect of closing

the Rhode Island borders to out-of-state waste.

A-49

In Hyatt Corp. v. Hyatt Legal Services, 610 F.Supp. 381

(N.D.IIL 1985), the court discussed the balancing test of Pike.

In discussing the number of factors involved the court said:

Most important is the actual effect on interstate com-

merce. The legitimacy of the local concern, however,

is also an important factor. See Lewis v. BT Investment

Managers, Inc., 447 U.S. (27) at 36, 100 S.Ct. (2009)

at 2015 (64 L.Ed.2d 702 (1980) |. Statutes designed

to protect health and welfare are more favored than

statutes designed to protect employment and profits.

Id. at 384.

Norfolk Southern Corp. v. Oberly, 632 F.Supp. 1225 (D.Del.

1986), aff'd, 822 F.2d 388 (3d Cir. 1987), addressed the issue

of whether Delaware could enforce the Delaware Coastal

Zone Act challenged by proponents of a coal transferring fa-

cility in Delaware Bay. Under Commerce Clause standards the

court enunciated the “test that forms the touchstone in Com-

merce Clause analysis,” as set by the Supreme Court in Pike:

[W)here the statute regulates evenhandedly to effec-

tuate a legitimate local public interest, and its effects

on interstate commerce are only incidental, it will be

upheld unless the burden imposed on such com-

merce is clearly excessive in relation to the putative

local benefits... .If a legitimate local purpose is

found, then the question becomes one of degree.

And the extent of the burden that will be tolerated

will of course depend on the nature of the local in-

terest involved, and on whether it could be pro-

moted as well with a lesser impact on interstate ac-

tivities. ©

Id. at 1232. :

In Reeves, Inc. v. Stake, 447 U.S. 429, 100 S.Ct. 2271, 65

L.Ed.2d 244 (1980), the court held that South Dakota's

policy, during periods of cement shortage, of confining sales

of state-produced cement to South Dakota residents, was not

violative of commerce clause (art. I, § 8, cl 3). ’

A-50

Not only must the court scrutinize the Holley Bill for com-

merce Clause violations, it must determine whether the fed-

eral law has preempted the field. In Capital Cities Cable, Inc. v.

Crisp, 467 U.S. 691, 104 S.Ct. 2694, 81 L.Ed.2d 580 (1984), the

court set forth the principles guiding preemption of state

laws, set forth below:

Under the Supremacy Clause, US Const, Art VI, cl 2,

the enforcement of a state regulation may be pre-

empted by federal law in several circumstances: first,

when Congress, in enacting a federal statute, has ex-

pressed a clear intent to pre-empt state law, Jones v.

Rath Packing Co., 430 US 519, 525, 51 L Ed. 2d 604,

97 S Ct 1305 [1309] (1977); second, when it is clear,

despite the absence of explicit pre-emptive language,

that Congress has intended, by legislating compre-

hensively, to occupy an entire field of regulation and

has thereby “left no room for the States to supple-

ment” federal law, Rice v. Sante Fe Elevator Corp., 331

US 218, 230, 91 L Ed 1447, 67 S Ct 1146 [1152

(1947); and, finally, when compliance with both

state and federal law is impossible, Florida Lime &

Avocado Growers, Inc. v. Paul, 373 US 132, 142-143, 10

L Ed 2d 248, 83 S Ct 1210 [1217-1218] (1963), or

when the state law “stands as an obstacle to the ac-

complishment and execution of the full purposes

and objectives of Congress.” Hines v. Davidowitz, 312

US 52, 67, 85 L Ed 581, 61 S Ct 399 [404] (1941).

Id. 467 U.S. at 698-99, 104 S.Ct. at 2699-2700, 81 L.Ed.2d at

588-89.

Analogous to the situation before the court is the decision

reached by the Supreme Court in Hillsborough County, Fla. v.

Automated Medical Laboratories, 471 U.S. 707, 105 S.Ct. 2371, 85

L.Ed.2d 714 (1985), in which the court held that Federal!

blood plasma regulations did not preempt county ordinances

imposing requirements beyond those contained in federal

regulations.

A-51

Even where Congress has not completely displaced

state regulation in a specific area, state law is nulli-

fied to the extent that it actually conflicts with fed-

eral law. Such a conflict arises when “compliance

with both federal and state regulations is a physical

impossibility,” Florida Lime & Avocado Growers, Inc. v.

Paul, 373 U.S. 132, 142-143, 10 L.Ed.2d 248, 83 S.Ct

1210 {1217-1218} (1963), or when state law “stands

as an obstacle to the accomplishment and execution

of the full purposes and objectives of Congress,”

Hines v. Davidowitz, (312 U.S. 52) supra, at 67, 85

L.Ed. 581, 61 S.Ct. 399 [404]. See generally Capital

Cities Cable, Inc. v. Crisp, 467 U.S. 691, 698-699, 81

L.Ed.2d 580, 104, S.Ct. 2694 [2699-2700] (1984).

471 US. at 713, 105 S.Ct. at 2375, 85 L.Ed.2d at 721.

The question whether the regulation of an entire

field has been reserved by the Federal Government

is, essentially, a question of ascertaining the intent

underlying the federal scheme. Sce supra, [471 U.S.}

at 712-713 [105 S.Ct. at 2374-2375], 85 L.Ed.2d at

720-721. In this case, appellee concedes phat neither

Congress nor the FDA expressly preempted state and

local regulation of plasmapheresis.

471 US. at 714, 105 S.Ct. at 2375, 85 L.Ed.2d at 722.

The FDA possesses the authority to promulgate regulations

under this legislation. Hillsborough held that the court's analy-

sis would be different had Congress not delegated to the FDA

the administration of the federal program. 471 U.S. at 721,

105 S.Ct. at 2379, 85 L.Ed.2d at 726.

This was followed the next year by Ensco, Inc. v. Dumas, 807

F.2d 743 (8th Cir. 1986), in which a-waste disposal company

challenged an ordinance prohibiting storage, treatment, or

disposal of hazardous waste. The court concluded:

We agree with the County that the language in sec-

tion 6929 prevents a conclusion that Congress

through the RCRA preempted all state and local

A-52

regulation of hazardous waste disposal. Cf.

Hillsborough County v. Automated Medical Laboratories,

471 U.S. 707, 105 S.Ct. 2371, 2375-76, 85 L.Ed.2d

714 (1985) (agency in issuing regulations under Pub-

lic Health Service Act had declared that state and

local authority was not intended to be preempted);

City of Philadelphia v. New Jersey, 437 U.S. 617, 620-21

n. 4, 98 S.Ct. 2531, 2533-34 n. 4, 57 L.Ed.2d 475

(1978) (no clear congressional intent in RCRA to

preempt entire field of interstate waste management

or transportation). Even where concurrent regula-

tion is not totally precluded, however, state and loca!

enactments are nullified to the extent they actually

conflict with federal law. Hillsborough County, 105

S.Ct. at 2375. A conflict exists when the local enact-

ment “ ‘stands as an obstacle to the accomplishment

and execution of the full purposes and objectives of

Congress.’ ” Id. (quoting Hines v. Davidowitz, 312 U.S.

52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941) ).

The RCRA emphasizes the need for safe disposal

and treatment of hazardous waste and grants to Ahe

EPA the authority to develop and detail appropriate

waste procedures and to outlaw less healthful prac-

tices.

Id. at 744-45.

The legislative history of environmental law indicates Con-

gress intended to build a program to protect the environment

and the health and welfare of the citizenry without preempt-

ing earlier acts and without preempting the states in the field

of environmental protection. While state are required to com-

ply with minimum restrictions, no language prevents them

from requiring more stringent standards.

[1] Having scrutinized the Alabama statute, the court is of

the opinion that the law is directed toward a legitimate state

concern: an effort to comply with the 20 year CERCLA capac-

ity assurance directive and more importantly to assure that all

hazardous waste buried in Alabama is treated and disposed of

A-53

in the most environmentally protective manner, as is the haz-

ardous waste generated in-state."® It is not an effort to isolate

Alabama from the national economy. Alabama’s statute does

not close its borders to all out-of-state waste, only to out-of-

state waste from states that are not in compliance with federal

law. As soon as they are in compliance the borders will be

opened to them.

Nor is the court of the opinion that the effect of the Holley

Bill confers a “significant benefit on in-state economic inter-

ests” or imposes “a significant burden on out-of-state eco-

nomic interest.” (Harvey interpretation of City of Philadelphia

previously discussed). The court holds there is not significant

discrimination against out-of-state economic interests suffi-

cient to warrant striking the Holly Bill as unconstitutional.

Alabama’s act, unlike the New Jersey one heard by the

court in City of Philadelphia, does not prohibit importation of

all solid waste. It does not have the effect of closing its borders

to all out-of-state waste. The ban is directed toward protection

of the health and welfare of the people and preservation of

the environment while encouraging compliance with federal

legislation. Its aim is to prevent Alabama from becoming the

dumping ground for those states that refuse to “clean up their

act” under federal law. Its impact on interstate commerce is

incidental and not excessive in relation to the local benefits.

(Pike; Lefrancwis.)

Nor is the Alabama statute an effort to preserve a natural

resource, its landfill, at the expense of the rest of the nation.

It is not an effort to hoard natural resources by denying entry

of nonconforming, out-of-state waste to its waste sites. It has

not restricted access to those states that have complied with

federal law. It has not forbidden either the passage of out-of-

state waste across its borders or the deposit of such waste at

"Hazardous waste generated in Alabama is regulated by the Hazardous

Waste Management and Minimization Act. Regulations and guidelines for

the treatment, storage, and disposal of all hazardous wastes generated in

the state are continually evaluated and updated.

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the Emelle landfill except for waste coming from noncon-

forming states. The competitive plight of the plaintiffs in the

above-styled action cannot be laid at the fect of Alabama. It is

attributable to the nonconforming states for not passing nec-

essary legislation or otherwise cooperating toward solution of

the problem. See Waste Aid Systems, Inc. v. Citrus County, Florida,

613 F.Supp. 102 (D.C.Fla. 1985) (The county ban against

acceptance of out-of-county waste at county’s solid waste dis-

posal landfill did not result in a “hoarding” of a natural re-

source, where county neither refused access to all its landfills

nor forbade transportation of out-of-county waste through its

borders). In the primary case relied upon by the plaintiffs

Philadelphia v. New Jersey, 437 U.S. 617, 98 S.Ct. 2531, 57

L.Ed.2d 475 (1978), hoarding occurred when the defendant

state forbade entry of waste generated outside the state, thus

closing “its borders to all waste from other States.” 437 U.S. at

619, 98 S.Ct. at 2533. Alabama has not closed its borders to all

waste from other states, but has only limited its available land-

fills to those states that are cooperating in an effort to control

the environment and protect the health and safety of citizens

of all states pursuant to Congress’s plan. The landfills are,

therefore, not hoarded.

For the above stated reasons the court holds that Act No.

89-788, Code of Alabama 1975, § 22-30-11(b), the Holley Bill,

does not violate the commerce clause of the Constitution.

{2} Neither does the Holley Bill violate the supremacy

clause of the Constitution. None of the environmental legisla-

tion enacted expresses a clear intent to preempt state law.

Case law and legislative history indicate there was no such

intent. Absent any intention to preempt the field, and there

being no conflict between the Alabama statute and federal

legislation which would make compliance with both a physical

impossibility, the court hold that the Alabama statute does not

violate the supremacy clause of the Constitution.

Neighboring state have long benefited from Alabama's

foresight and industry in developing means for hazardous

waste disposal and its minimization. To allow them to con-

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‘inue to avail themselves of waste sites in Alabama when they

have done nothing toward implementation of the federal poli-

cies herein discussed would defeat the very intent of the fed-

eral legislation. To hold that either the commerce clause or

the supremacy clause of the Constitution mandates Alabama's

borders be opened to all threatens the future fashioning of

effective and creative programs for cleaning up hazardous

waste sites and providing for the safest means of disposal.

Unless those nonconforming states are forced to comply with

federal legislation, they will continue to do the locally popular

thing: transport the waste to Alabama or other conforming

States.

For the reasons set forth in this opinion, the court grants

summary judgment in favor of the defendants. An order con-

sistent with the opinion is being entered contemporaneously

herewith.

FINAL ORDER

This cause comes before the court on the motion for pre-

liminary injunction which this court converted into simulta-

neous motions for summary judgment. ex mero motu at the

October 16, 1989, preliminary injunction hearing. Having

considered the motions, the pleadings, the submissions and

arguments of counsel, and the applicable law, the court is of

the opinion that Act No. 89-788, Ala.Code § 22-30-11(b)

(1975) [the Holley Bill], is constitutional. It is of the further

opinion that judgment is due all defendants as a matter of

law, there being no just reason for delay in entering a final

judgment. Accordingly, in conformity with the memorandum

opinion being entered contemporancously herewith, it is

ORDERED, ADJUDGED and DECREED that the motion of

the defendants for summary judgment be and it hereby is

GRANTED. It is

FURTHER ORDERED, ADJUDGED and DECREED that

Act No. 89-788, Ala. Code § 22-30-11(b) (1975) [the Holley

ee Se ee Sea eee ee.

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Bill], and the ensuing LDR regulations and emergency regula-

tions be and they hereby are DECLARED constitutional. It is

FURTHER ORDERED, ADJUDGED and DECREED that

the plaintiffs’ motion for summary judgment be and it hereby

is DENIED. It is

FURTHER ORDERED, ADJUDGED and DECREED that is-

suance of a permanent injunction enjoining defendants from

enforcing, applying, or attempting to enforce the Holley Bill,

the LDR regulations and the emergency regulations be and it

hereby is DENIED. It is

FURTHER ORDERED, ADJUDGED and DECREED that FI-

NAL JUDGMENT be and it hereby is ENTERED in favor of

the defendants, and the plaintiffs shall have and recover noth-

ing of the defendants in this action.

DONE and ORDERED.

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APPENDIX D

ACTS OF ALABAMA

Act No. 89-788

May 11, 1989

AN ACT

To amend Code of Alabama, 1975, §22-30-11, to provide for additional

definitions and to prohibit commercial

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