# Petition for Writ of Certiorari — Alabama Department of Environmental Management v. National Solid Wastes Management Ass'n > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2049%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 501 U.S. 1206 ## Text G 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 v. 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 i 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. il STATEMENT OF INTERESTED PARTIES All parties to this case in the court below are listed in the caption. a 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 iV 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 oy ; i . : ' ’ Vv 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 V. 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. 2 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 — 3 (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, (C) are acceptable to the President, and (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- 4 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. (c) Subsequent to the effective date of Acts 1989, 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. 5 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. 6 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. 7 (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- 8 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- 9 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. 10 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. 1] 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. 12 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. 13 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- 14 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 15 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 16 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 17 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. 18 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 19 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). 20 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. ——— ee ———— iu 21 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. 22 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, (C) are acceptable to the President, and (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. (c) Subsequent to the effective date of Acts 1989, No. 89-788, 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. E. 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. le 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, V. 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— d % 5 j 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, (C) are acceptable to the President, and (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 addit [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2049%3A1. Public record. Not legal advice.