# Petition for Writ of Certiorari — Chemical Waste Management, Inc. v. Hunt > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0185%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1992 - **Citation:** 504 U.S. 334 ## Text ii f supreme Court, U.S, 61-47; FILED N §u the Supreme Court of the Unite OCTOBER TERM, 1991 CHEMICAL WASTE MANAGEMENT, INC., PETITIONER v. GUY HUNT, GOVERNOR OF THE STATE OF ALABAMA; ALABAMA DEPARTMENT OF REVENUE; AND JAMES M. SIZEMORE, Jk., COMMISSIONER OF THE ALABAMA DEPARTMENT OF REVENUE, RESPONDENTS Petition for a Writ of Certiorari to the Supreme Court of Alabama PETITION FOR A WRIT OF CERTIORARI JAMES T. BANKS ANDREW J. PINCUS * JOHN T. VAN GESSEL KENNETH S. GELLER Chemical Waste EVAN M. TAGER Management, Inc. Mayer, Brown & Platt 8003 Butterfield Road 2000 Pennsylvania Ave., N.W. Oak Brook, Illinois 60521 Washington, D.C. 20006 (708) 218-1500 (202) 778-0628 DRAYTON PRUITT, JR. FOURNIER J. GALE III Pruitt, Pruitt & H. THOMAS WELLS, JR. Watkins, P.A. Maynard, Cooper, Frierson Courthouse Square & Gale, P.C. P.O. Box 1037 1901 Sixth Avenue, North Livingston, Alabama 35470 2400 AmSouth/Harbert Plaza (205) 652-9627 Birmingham, Alabama 35203 (205) 254-1000 Counsel for Petitioners * Counsel of Record WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001 QUESTIONS PRESENTED In April 1990, the State of Alabama adopted Act No. 90-326, a statute that taxes and otherwise regulates the disposal of hazardous waste within Alabama. Petitioner subsequently commenced this action challenging three pro- visions of the Act under the Commerce Clause. The ques- tions presented are: 1. Whether a $72 per ton disposal tax that on its face applies only to waste generated outside of Alabama vio- lates the Commerce Clause. 2. Whether a $25.60 per ton disposal tax that applies only to waste disposed of at “commercial” hazardous waste disposal facilities, and thereby exempts most of the hazardous waste generated and disposed of within Ala- bama, discriminates in its practical effect against out-of- state waste in violation of the Commerce Clause. 3. Whether a provision limiting the amount of waste that may be disposed of annually at a commercial hazard- ous waste disposal facility, which was motivated by an intention to reduce the amount of out-of-state waste dis- posed of in Alabama and is structured to achieve that purpose without substantially limiting the amount of in- state waste that may be disposed of in Alabama, violates the Commerce Clause. (i) ii RULE 29.1 STATEMENT Pursuant to Rule 29.1 of the Rules of this Court, peti- tioner Chemical Waste Management, Inc., states that its parent corporation is Waste Management, Inc. Chemical Waste Management, Inc.’s subsidiaries (other than wholly owned subsidiaries) are The Brand Companies, Inc. and Cemtech Management, Inc. TABLE OF CONTENTS QUESTIONS PRESENTED ..........0...20..0...0..220-eeeeeeeeee RN CE MENS 60... cccccccsnenccessnsececseeessceonereesee TABLE OF AUTHORITIES ........... <> Teen eo, cescccecsnistnnconeestneenccocees a STATUTORY PROVISIONS INVOLVED |... ES a 1. 2. 3. 4. 5. Regulatory Background .......................................-- Ne nn. carecececacecsscereceees Alabama’s Efforts To Impede The Disposal In Alabama Of Waste Generated In Other States. The Challenged Statute 000000000... Seen i ey se, cccnscosecncorsonecorecocses REASONS FOR GRANTING THE PETITION ......... I. THE ALABAMA SUPREME COURT'S DECI- SION UPHOLDING THE FACIALLY DIS- CRIMINATORY $72 ADDITIONAL FEE CONFLICTS WITH THIS COURT’S PRECE- DENTS ON A QUESTION OF GREAT IM- I tha A. This Court’s Decisions Make Clear That The $72 Tax Violates The Commerce Clause ........ B. The Decision Below Squarely Conflicts With Those Of Other Lower Courts Invalidating Statutes That Facially Discriminate Against Out-of-State Waste ............... Sn (iii) 10 10 11 15 iv TABLE OF CONTENTS—Continued Il. THE ALABAMA SUPREME COURT'S DECI- Ill. IV. SION UPHOLDING THE $25.60 BASE FEE CONFLICTS WITH DECISIONS OF THIS COURT AND OTHER COURTS ON RECUR- RING ISSUES CENTRAL TO THIS COURT’S COMMERCE CLAUSE JURISPRUDENCE... A. The Base Fee Discriminates Against Inter- state Commerce In Violation Of The Com- merce Clause B. The Decision Below Exacerbates The Conflict Among The Lower Courts Regarding The Circumstances In Which The Strict Scrutiny Test Should Be Applied To Facially Neutral State Laws ................. THE ALABAMA SUPREME COURT'S DECI- SION UPHOLDING THE CAP PROVISION ALSO WARRANTS REVIEW BY THIS STITT ennepiesaccihcomsentineesiehiaiiicide eet THE QUESTIONS PRESENTED HAVE CON- SIDERABLE PRACTICAL SIGNIFICANCE... UII sssittsnshiahshionasenitetennecictnnbndiceoniieena Page 18 21 25 27 29 30 Vv TABLE OF AUTHORITIES Cases: Page Alabama vy. United States Environmental Protec- tion Agency, 871 F.2d 1548 (11th Cir.), cert. denied, 110 S. Ct. 538 (1989) 000. SE Rot 2,4,5 Amerada Hess Corp. V. Director, Division of Tax- ation, 490 U.S. 66 (1989) ................2222222..2---20e eee 21, 22 American Trucking Ass’ns, Inc. V. Scheiner, 483 U.S. 266 (1987) ....... Sar et ER Re Rte oe Ae nea 21, 22 American Trucking Ass’ns, Inc. Vv. Secretary of State, 1991 Me. Lexis 148 (Me. June 17, 1991).. 14 Archer Daniels Midland Co. v. State, 690 P.2d 177 EE TERRES RP RRO i tenn ees A 27 Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 AERP ERE SEE ee 9 ee eR Pee ee NE 20, 22 Best & Co. v. Maxwell, 311 U.S. 454 (1940) 21 Chemical Waste Management, Inc. v. Templet, 1991 U.S. Dist. Lexis 9492 (M.D. La. July 9, 1991). 16 City of Philadelphia v. New Jersey, 437 U.S. 617 eee passim Commonwealth Edison Co. v. Montana, 453 U.S. ec sesnnensoienieiacinaiian 23 Continental Illinois Corp. v. Lewis, 827 F.2d 1517 (11th Cir. 1987), vacated as moot, 110 S. Ct. 1249 (1990) ........ BC ar ER POTEET ee ae 25, 26 CTS Corn. v. Dynamics Corp. of America, 481 U.S. gh SRR TIES OS od Ae nb an ee a aR a .. 28, 24 Dayton Power & Light Co. v. Lindley, 58 Ohio St. 2d 465, 391 N.E.2d 716 (1979) .........0... 26 Division of Alcoholic Beverages & Tobacco v. Mec- Kesson Corp., 524 So. 2d 1000 (Fla. 1988), rev’d as to other issues, 110 S. Ct. 2238 (1990) 26, 27 Empire Sanitary Landfill, Inc. v. Pennsylvania, No. 90-187-W (Pa. Envtl. Hearing Bd.) ........... 17 Exxon Corp. V. Maryland, 437 U.S. 117 (1978) ...... 23, 24 Gilliam County v. Department of Environmental Quality, No. A68441 (Or. Ct. App.) 0... 17 Government Suppliers Consolidating Services V. Bayh, 753 F. Supp. 739 (S.D. Ind. 1990) —...... 16 Hardage v. Atkins, 582 F.2d 1264 (10th Cir. I A IR La ESE anne RIE IG EIEIO ROS ea a Sak 16 vi TABLE OF AUTHORITIES—Continued Page Hazardous Waste Treatment Council v. South Carolina, 32 E.R.C. 1646 (D.S.C. 1991), appeal pending, No. 91-2317 (4th Cir.) oD 16, 17 Hughes v. Oklahoma, 441 U.S. 322 (1979)... 11 Hunt Vv. Washington State Apple Advertising Comm’n, 482 U.S. 388 (1977) ............................. 21, 22 lilinois Vv. General Electric Co., 683 F.2d 206 (7th Cir. 1982), cert. denied, 461 U.S. 913 (1983) 14, 16, 17 Industrial Maintenance Service Vv. Moore, 677 F. Supp. 486 (S.D. W. Va. 1987) ............0000 16 J.V. Peters & Co. Vv. Administrator, 767 F.2d 263 I 30 Lewis Vv. Continental Bank Corp., 110 S. Ct. 1249 RAST re a EE A pe Sal rat ae I 25 Maine V. Taylor, 477 U.S. 131 (1986) ee, 13, 14 Maryland v. Louisiana, 451 U.S. 725 (1981) Se ve 15 McKesson Corp. V. Division of Alcoholic Beverages & Tobacco, 110 S. Ct. 2238 (1990) 20 Minnesota v. Clover Leaf Creamery Co., 449 U.S. RR TIES ot Ee aR ett ee ae 13, 22 National Solid Wastes Management Ass’n V. Ala- bama Dep’t of Environmental Management, 910 F.2d 713 (11th Cir. 1990), modified, 924 F.2d 1001, cert. denied, 111 S. Ct. 2800 (1991) — 2,6, 15, 16 National Solid Wastes Management Ass’n V. Jor- ing, Civ-90-1288A (W.D.N.Y.) 17 National Solid Waste Management Ass’n V. . Voino- vich, 763 F. Supp. 244 (S.D. Ohio 1991), appeal pending, No. 91-3466 (6th Cir.) hea 16, 17 New Energy Co. of Indiana vy. Limbach, 486 U.S. gE eh ER SR ere ee Pe 11,13, 14 Nippert v. City of Richmond, 327 U.S. 416 (1946) . 21 Norfolk Southern Corp. Vv. Oberly, 822 F.2d 388 fe 3D 5 een . 22, 25 Opinion of the Justices, 379 A. 2d 7182 (NH ROUSE eae 26 Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). x Robbins v. Shelby County Taxing Dist., 120 US. 489 (1887) AE MR 2 HONE On ON GT Or LST Ta 21 vii TABLE OF AUTHORITIES—Continued Page Washington State Building & Construction Trades Council v. Spellman, 684 F.2d 627 (9th Cir. 1982), cert. denied, 461 U.S. 913 (1983) ......... 15, 16 Statutes and Regulations: i GD oo vcrececncesvenccerccscestoneeseonsnsneosones 5 Alabama Act No. 89-788, Section 1(9)-1(14) .......... 17 TA I TI... ci ccnnccoccvssvevensncconsessccscsescees passim Ala. Code § 28-30-11 (b) ...........-....--2202----0cc0-eeereseeeeee- 6 Ala. Code § 22-30-12(i) ee eee 4 Ala. Code § 22-30B-1(1) —.......... BT aan ik 4 Ala. Code § 22-30B-1(2) ............. a a as ila 19 Ala. Code § 22-30B-1.1 e¢ seq. ............-------------00+-++ 6 BR EN I nanos sececcnscnscccervenvencsnesscnsscesnsstoes 6 Biber, Cte 6 BID... onan nsscenvensecere-covccescocevessvsnesenees 6 Bilin, Celie 6 ID on assoc nncesnccnrcennsessascosessnccsersccnessene 15 Comprehensive Environmental! Response, Compen- sation and Liability Act, 42 U.S.C. § 9607 Resource Conservation and Recovery Act, 42 USL. GGGG8 a6 006. ..............-..... 42 U.S.C. § 6924 REET EA cares Da iad 7 42 U.S.C. § 6925 .. Toxic Substances Control Act, 15 US.C. '§ 2601 tht ww 28 U.S.C. § 1257(a) . is fen: A mata, Tax Injunction Act, 28 U.S. C, § 1341 ; l 49 U.S.C. App. §§ 1801-1819 - 49 U.S.C. App. § 1805 ............... Pub. L. No. 101-615, § 23, 104 Stat. 3244 (1990) 40 C.F.R. Parts 260-271 Peas 40 C.F.R. § 264.110-264.120 40 C.F.R. § 264.140-264.147 40 C.F.R. Part 268... se 49 C.F.R. Parts 171-180 (1990) . 49 C.F.R. § 173.300 roan sae 49 C.F.R. § 173.510 49 C.F.R. § 177.834 49 C.F.R. § 177.854-177.860 49 C.F.R. Part 178 . 55 Fed. Reg. 22520 (1990) ......... | or hr PR RP KRWHOWWN HWW & Iu the Supreme Court of the United States OCTOBER TERM, 1991 CHEMICAL WASTE MANAGEMENT, INC., PETITIONER Vv. Guy HUNT, GOVERNOR OF THE STATE OF ALABAMA; ALABAMA DEPARTMENT OF REVENUE: AND JAMES M. SIZEMORE, JR., COMMISSIONER OF THE ALABAMA DEPARTMENT OF REVENUE, RESPONDENTS Petition for a Writ of Certiorari to the Supreme Court of Alabama PETITION FOR A WRIT OF CERTIORARI Chemical Waste Management, Inc., respectfully peti- tions for a writ of certiorari to review the judgment of the Supreme Court of Alabama in this case. OPINIONS BELOW The opinion of the Supreme Court of Alabama (App., infra, la-49a is not yet reported. The opinion of the Cir- cuit Court of Montgomery County (App., infra, 50a-96a) is unreported. | JURISDICTION The judgments of the Supreme Court of Alabama were entered on July 11, 1991. App., infra, 97a-10la. The ju- risdiction of this Court rests on 28 U.S.C. § 1257/(a). STATUTORY PROVISIONS INVOLVED Alabama Act No. 90-326 is reprinted at pages 102a- 114a of the appendix to this petition. STATEMENT Petitioner Chemical Waste Management, Inc. (“CWM”) operates a commercial hazardous waste disposal facility 2 located near the town of Emelle, Alabama (“the Emelle facility”), that is authorized to treat and dispose of hazardous waste under both federal and state law. Most of the waste disposed of at the Emelle facility is generated in other states and moves in interstate commerce to Ala- bama for treatment and/or disposal. The facility plays a critical role in the safe disposal of the Nation’s hazardous waste. As the United States has observed, “Emelle is important from a nationwide perspective because it is the largest hazardous waste management facility in the United States and the ultimate depository for over one third of the waste materials shipped off-site from Super- fund [cleanup] sites.” Brief for the United States at 9, National Solid Wastes Management Ass’n v. Alabama Dep’t of Environmental Management (“NSWMA”), 910 F.2d 713 (11th Cir. 1990), modified, 924 F.2d 1001, cert. denied, 111 S. Ct. 2800 (1991). For the last three years, the State of Alabama has tried to prevent the disposal at the Emelle facility of waste generated in other states. Alabama’s efforts re- peatedly have been rebuffed by the courts—until now. The State’s latest assault on non-Alabama waste, Act No. 90-326, furthers its purpose through three different provisions: one that facially discriminates against inter- State waste, one that discriminates in practical effect, and a third that incorporates both types of discrimina- tion. Remarkably, the Alabama Supreme Court held that Act No. 90-326 nonetheless complies with the Commerce Clause in all respects. This petition seeks review of that unprecedented interpretation of the Commerce Clause. 1. Regulatory Background. Disposal of hazardous waste is strictly regulated under federal law. The Re- source Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901 et seq., and the regulations promulgated by the Environmental Protection Agency (“EPA”) pur- suant to that statute (see 40 C.F.R. Parts 260-271 ), im- pose elaborate requirements for the safe handling and disposal of hazardous waste. See Alabama v. United States Environmental Protection Agency, 871 F.2d 1548, 3 1552 (11th Cir.), cert. denied, 110 S. Ct. 538 (1989) (citations omitted). RCRA provides that all operators of hazardous waste treatment, storage, or disposal facilities must obtain permits fixing the terms on which the opera- tor may engage in those activities. 42 U.S.C. § 6925. Federal law recognizes that hazardous waste is an un- avoidable byproduct of virtually all industrial processes and that some hazardous waste must be disposed of in landfills. Congress in 1984 specified that land disposal of hazardous waste would be permitted only after such waste is treated with the “best available demonstrated technology,” or in compliance with the applicable treat- ment standard, in order to reduce the waste’s toxicity and mobility. 42 U.S.C. § 6924. The EPA has promul- gated regulations setting forth these technological re- quirements. See generally 40 C.F.R. Part 268; 55 Fed. Reg. 22520, 22523 (1990). Moreover, federal law provides that the operator of a hazardous waste disposal facility is responsible for en- suring the containment of waste disposed of at that site. - 40 C.F.R. § 264.110-264.120; see also 42 U.S.C. § 9607. In addition, the operator must provide “financial assur- ances’ demonstrating the availability of funds to cover the closure of the facility and post-closure care for 30 years as well as liability insurance for injuries to third parties. 40 C.F.R. § 264.140-264.147. Finally, in the event the foregoing resources prove inadequate, genera- tors, brokers, and transporters of the waste disposed of at a hazardous waste disposal facility are jointly and severally liable for the costs of remedial action if there is a release from such a facility. 42 U.S.C. § 9607. Federal law also comprehensively regulates the trans- portation of hazardous materials. See 49 U.S.C. App. §§ 1801-1819; 49 C.F.R. Parts 171-180 (1990). Among other things, these provisions require transporters of hazardous materials to register with and obtain safety permits from the Secretary of Transportation (49 U.S.C. App. § 1805) and specify procedures for minimizing the 4 risk of and for redressing spills in transit. See 49 C.F.R. $$ 173.300, 173.510, 177.834, 177.854-177.860; id. Part 178. In addition, federal law requires transporters of hazardous materials to demonstrate financial respon- sibility of at least $5 million to cover the cost of re- mediating any spill of such materials that may occur in yey Pub. L. No. 101-615, § 23, 104 Stat. 3244, 3272 2. The Emelle Facility. CWM’s Emelle facility has received a RCRA permit from the EPA, as well as a separate permit—issued by the EPA pursuant to the Toxie Substances Control Act, 15 U.S.C. § 2601 et seq.— authorizing the disposal of polychlorinated biphenyls (“PCBs”) at the facility.! These permits establish that the Emelle facility “has complied with elaborate federal regulations designed to ensure the safe disposal of haz- ardous wastes * * *. To the extent these federal regula- tions can and do provide for the safe treatment and disposal of toxic wastes, CWM’s Emelle, Alabama, fa- cility poses no threat to the health and safety of the residents of Emelle or to other Alabama residents.” Ala- bama, 871 F.2d at 1552-1553. Indeed, Governor Hunt has characterized the Emelle facility as “probably one of the safest such facilities in the country.” Pl. Exh. 80. The Emelle facility is a “commercial” hazardous waste disposal facility under Alabama law because it is “{a] site or facility receiving hazardous waste or hazardous substances * * * not generated on site, for disposal and to which a fee is paid or other consideration given for such disposal.” Ala. Code § 22-30B-1(1). A substantial amount of the waste disposed of at the Emelle facility is generated in states other than Alabama and moves in interstate commerce to the Emelle facility. The trial court found that “|elighty-five to ninety percent of the 1The Emelle facility also is regulated under Alabama law. Currently, the facility is authorized to operate pursuant to the interim status procedures set forth in Ala. Code. § 22-30-12(i). 5 tonnage permanently buried at Emelle is from out-of- state.” App., infra, 58a. Hazardous waste is also disposed of within Alabama at facilities that do not qualify as “commercial,” either because the waste is generated on site or because a fee is not charged for disposal. Virtually all of the hazardous waste disposed of at such facilities is generated within Alabama. Moreover, this waste accounts for a very sub- stantial percentage of all of the Alabama-generated waste that is disposed of within the State.* 3. Alabama’s Efforts To Impede The Disposal In Ala- bama Of Waste Generated In Other States. Over the past several years, Alabama repeatedly has sought to prevent the disposal within the State of hazardous waste gener- ated in other states. In 1988 the State filed suit in an effort to halt the cleanup of an abandoned hazardous waste site in Texas because the waste was to be disposed of at the Emelle facility. This effort to stop the flow of waste at the State’s borders was rebuffed by the Eleventh Circuit. Though dismissing the case on standing and jurisdictional grounds, that court admonished that “|t]o the extent plaintiffs * * * 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.” Alabama, 871 F.2d at 1555 n.3. Alabama’s next attempt to thwart the movement of waste in interstate commerce was the enactment of Ala. 2In 1987—the most recent year for which data are available —over 3 million tons of hazardous waste were generated in Ala- bama. Pl. Exh. 27, at 44. Of that total, less than 30,000 tons were disposed of in commercial landfills. Robertson Dep. 155-158. About 7,500 tons were disposed of in noncommercial landfills (Pl. Exh. 27, at 62) and 690,000 tons were disposed of in noncommercial surface impoundments (id. at 64). Another 57,000 tons were shipped out of state for management and disposal. Jd. at 46. Over 90% of the remaining 2.2 million tons of in-state waste was treated or stored in noncommercial surface impoundments and waste piles. Jd. at 52, 53, 56. Those forms of treatment and stor. age come within Alabama’s broad definition of “disposal.” See page 19, infra. 6 Act No. 89-788 (codified at Ala. Code § 22-30-11(b)) in May 1989. That measure, popularly known as the Holley Bill, barred any commercial hazardous waste disposal fa- cility located in Alabama from treating or disposing of hazardous waste generated outside Alabama if the state in which the waste was generated did not satisfy certain criteria specified by Alabama. Finding that the Holley Bill “distinguishe|d] among wastes based on their origin with no other basis for the distinction,” the Eleventh Cir- cuit held that the Holley Bill violated the Commerce Clause. NSWMA, 910 F.2d at 720. 4. The Challenged Statute. In 1990, Alabama con- tinued its assault on out-of-state waste by enacting Ala Act. No. 90-326 (codified at Ala. Code § 22-30B-1.1 ef seq.), the statute at issue in this case. The Act imposes two fees on the disposal of waste at commercial hazardous waste disposal facilities in Alabama. First, it levies a fee of $25.60 per ton (“the Base Fee”) on all waste disposed of at such facilities. Second, the Act imposes a separate fee of $72 per ton (“the Additional Fee”) ex- pressly limited to waste generated outside Alabama and disposed of at such facilities. See Ala. Code § 22-30B-2 The Act also contains a provision that restricts the amount of waste that can be disposed of at commercial hazardous waste disposal facilities during any one-year period (“the Cap Provision”). The cap was fixed at the amount of waste received at such facilities during the year beginning July 15, 1990—the day the new fees took effect. See id. § 22-30B-2.3. The annual limit may be exceeded if necessary “to protect human health or the environment in the state, or to allow the state to comply with its obligations to assure disposal capacity pursuant to applicable state or federal law.” bid. When Governor Hunt signed Act No. 90-326 into law he stated: On the day I took office just over three years ago toxic waste producers in other states could drive their problems to Alabama and dump them for only $6 a 7 ton. But today, Alabama is taking down the sale sign. With this law it’s going to cost $112 a ton to bring hazardous waste into Alabama from other states. Let the message go out. There are no more environmental bargains to be found here. Pl. Exh. 80.* Other state officials made similar pronounce- ments during the legislature’s consideration of this stat- ute. See, e.g., Pegues Dep. 32-33 (Director of the Ala- bama Department of Environmental Management (“ADEM”) ). 5. The Decisions Below. In May 1990, CWM com- menced this action in Alabama circuit court challenging Act No. 90-326 on federal and state constitutional grounds. Following a trial, the circuit court held that the $72 Additional Fee violated the Commerce Clause, but rejected CWM’s challenges to the Base Fee and Cap Provision. The circuit court found that “the Additional Fee fa- cially discriminates against waste generated in States other than Alabama * * *. Waste generated within Alabama * * * is completely exempted from the Addi- tional Fee.” App., infra, 85a (emphasis in original). The court rejected the State’s proffered environmental and safety justifications for singling out waste from other States: [H]azardous waste generated in Alabama is just as dangerous as such waste generated in other states. All of the safety and environmental concerns set forth at trial * * * apply with equal force to hazard- ous waste generated in and out of the State of Alabama. * * * This Court finds that the record contains no evidence of any difference between in- state waste and out-of-state waste other than the waste’s state of origin. Id. at 86a. ’ The taxes levied on interstate waste by Act No. 90-326 totalled $97.60 per ton; other provisions imposed additional exactions amounting to $14.40 per ton. 8 The court also concluded that the Additional Fee could not be justified on the ground that it imposes on out-of- state waste generators their fair share of the costs to Alabama of waste disposal facilities located within the State. The court found insufficient evidence that in-state generators bore a disproportionate share of these costs prior to the enactment of the Additional Fee and no evi- dence that the Fee equalized the burden on in-state and out-of-state generators. App., infra, 88a n.6. Accordingly, the court concluded that the Additional Fee violates the Commerce Clause. The court reached a different conclusion with respect to the Base Fee. It began by stating that strict scrutiny is required under the Commerce Clause only if the chal- lenged regulation is “discriminatory on its face or in practical effect.” App., infra, 65a. According to the court, “any evidence attributing to any state officials any motive of discrimination against interstate commerce” is “ir- relevant” to the level of scrutiny required. Jd. at 66a n.1. The court then stated that the Base Fee does not dis- criminate against out-of-state waste on its face or in its practical operation. App., infra, 66a. It therefore upheld the Base Fee under the balancing test set forth in Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970), concluding that “the burden the Base Fee imposes on interstate com- merce is not clearly excessive in relation to the benefits it produces” (App., infra, 67a). The circuit court used an identical analysis in assessing the validity of the Cap Provision. Ignoring the fact that the exception to the annual limit is available only for Alabama waste, the court stated that “[t]he Cap provi- sion applies equally to in-state and out-of-state waste.” App., infra, 72a. Accordingly, it again applied the Pike balancing test and upheld the provision. The Alabama Supreme Court affirmed the circuit court’s decision—and adopted its opinion—with respect to the Base Fee and Cap Provision. See App., infra, 17a-37a. However, it reversed the circuit court’s ruling that the 9 Additional Fee is unconstitutional. According to the state supreme court, this Court’s decisions ‘make a distinction between state measures that discriminate arbitrarily against out-of-state commerce in order to give in-state interests a commercial advantage, i.e., simple economic protectionism, and state measures that seek to protect public health or safety or the environment.” /d. at 41a. The court found that the Additional Fee differed from the facially discriminatory bans on out-of-state waste invali- dated in City of Philadelphia v. New Jersey, 437 U.S. 617 (1978), and NSWMA because it “has not been enacted for the purpose of economic protectionism.” Jd. at 44a. Based on the asserted inapplicability of those decisions, the court determined that the Additional Fee serves these legitimate local purposes that cannot be adequately served by reasonable nondiscriminatory alternatives: (1) protection of the health and safety of the citizens of Alabama from toxic substances; (2) conservation of the environment and the state’s natu- ral resources; (3) provision for compensatory reve- nue for the costs and burdens that out-of-state waste generators impose by dumping their hazardous waste in Alabama; (4) reduction of the overall flow of wastes traveling on the state’s highways, which flow ereates a great risk to the health and safety of the state’s citizens. Thie. The state supreme court concluded that “|t|here is nothing in the Commerce Clause that compels the State of Alabama to yield its total capacity for hazardous waste disposal to other states. To tax Alabama-generated hazardous waste at the same rate as out-of-state waste is not an available nondiscriminatory alternative, because Alabama is bearing a grossly disproportionate share of the burdens of hazardous waste disposa] for the entire country.” App., infra, 45a-46a.' 4 Justice Houston concurred in the judgment, concluding that hazardous waste should not be (reated as an article of commerce protected by the Commerce Clause. App., infra, 48a-49a, 10 REASONS FOR GRANTING THE PETITION The Framers of our Constitution sought to avoid the commercial rivalries among states that festered under the Articles of Confederation by mandating economic as well as political union. The Framers recognized that the states were in fact economically interdependent and that the Nation would therefore be strongest without artificial barriers obstructing commerce among the states. The Commerce Clause fosters this ideal by prohibiting the states from discriminating in favor of their own goods and against those originating in other states and from seeking to reserve privately-owned resources for their own citizens. The statutory provisions at issue here, and the Ala- bama Supreme Court’s decision upholding them, comprise nothing less than a frontal assault on these basic Com- merce Clause principles. The notion that Alabama may in effect erect an “interstate waste keep out” sign at the Emelle facility, and reserve CWM’s waste disposal ca- pacity solely for Alabamians, reflects the very focus on parochial state interests—rather than national interests— that the Framers sought to eradicate. This Court should grant the petition for certiorari to correct the erroneous decision of the court below and to ensure that the Com- merce Clause continues to serve its intended function. I. THE ALABAMA SUPREME COURT’S DECISION UPHOLDING THE FACIALLY DISCRIMINATORY $72 ADDITIONAL FEE CONFLICTS WITH THIS COURT'S PRECEDENTS ON A QUESTION OF GREAT IMPORTANCE. The decision below upholding the facially discrimina- tory $72 tax on interstate waste rests on a clear mis- application of this Court’s decision in City of Philadel- phia v. New Jersey, supra, which held that a state may not discriminate against waste solely on the basis of its origin. Indeed, the Alabama Supreme Court’s conclusion that the strictures of the Commerce Clause do not apply if a state legislature acts for noneconomic reasons was 11 expressly rejected in City of Philadelphia itself. And other lower courts have consistently applied the City of Philadelphia rule regardless of the subjective motivation underlying the facially discriminatory statute. This Court should grant review to resolve the conflict among the lower courts and correct the Alabama Supreme Court’s error regarding this question of substantial pub- lie importance. A. This Court’s Decisions Make Clear That The $72 Tax Violates The Commerce Clause. Well-established principles govern analysis under the Commerce Clause of a state law that discriminates on its face against interstate commerce. Facial discrimination against interstate commerce “by itself may be a fatal defect, regardless of the State’s purpose.” Hughes Vv. Oklahoma, 441 U.S. 322, 337 (1979). To the extent facial discrimination is not per se unconstitutional, the state’s burden of justification is “high”: the discriminatory stat- ute must be invalidated unless the state can show that the law “advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory al- ternatives.” New Energy Co. v. Limbach, 486 U.S. 269, 278 (1988). A court must engage in “the strictest scru- tiny of any purported legitimate local purpose and of the absence of nondiscriminatory motives.” Hughes, 441 U.S. at 337. This Court has applied this standard in the precise context presented here—a statute that discriminates on its face against waste generated in other states. In City of Philadelphia, the Court held invalid under the Commerce Clause a New Jersey statute that barred the disposal within that state of waste generated in other states while permitting disposal of New Jersey waste. The Court ex- plained that the Commerce Clause prevented New Jersey from “discriminating against articles of commerce com- ing from outside the State unless there is some reason, apart from their origin, te treat them differently.” 437 U.S. at 626-627. 12 The Court stated that “[t]he harms caused by waste are said to arise after its disposal in landfill sites, and at that point, as New Jersey concedes, there is no basis to distinguish out-of-state waste from domestic waste. If one is inherently harmful, so is the other. Yet New Jersey has banned the former while leaving its landfill sites open to the latter.” 437 U.S. at 629. The statute thus was “an obvious effort to saddle those outside the State with the entire burden of slowing the flow of refuse into New Jersey’s remaining landfill sites. That legislative effort is clearly impermissible under the Commerce Clause.” Jbid. The $72 Additional Fee is indistingwishable from the statute held invalid in City of Philadelphia: it discrimi- nates against out-of-state waste precisely because of the waste’s state of origin. There can be no dispute that the purpose and effect of the Additional Fee are to discourage the disposal within Alabama of waste generated in other states, while exempting from that burden waste gen- erated within Alabama. That is precisely what City of Philadelphia forbids. The Alabama Supreme Court refused to apply City of Philadelphia’s anti-discrimination principle to the Addi- tional Fee. It reasoned: “City of Philadelphia v. New Jersey does not hold that a state may not limit importa- tion of wastes to protect health and the environment; it holds that a state may not do so for ‘simple economic pro- tectionism.’”” App., infra, 42a. This Court’s decisions, however, expressly and con- clusively reject the Alabama Supreme Court’s “distinc- tion’ based on subjective legislative motivation. For example, in City of Philadelphia itself, New Jersey “denlied|] that [its statute] was motivated by financial concerns or economic protectionism” and contended that it was designed “ ‘to protect the health, safety and wel- fare of the citizenry at large.’” 437 U.S. at 626 (citation omitted). The Court found New Jersey’s actual motive irrelevant, stating: 15 [I]t does not matter whether the ultimate aim of [the statute| is to reduce the waste disposal costs of New Jersey residents or to save remaining open lands from pollution, for we assume New Jersey has every right to protect its residents’ pocketbooks as well as their environment. * * * But whatever New Jersey’s ultimate purpose, it may not be accomplished by discriminating against articles of commerce com- ing from outside the State unless there is some reason, apart from their origin, to treat them dif- ferently. Id. at 626-627. The Court has reiterated this point on several occasions. See, e.g., New Energy, 486 U.S. at 279 n.3 (even if state legislature was motivated by a sub- jective purpose to protect public health, that purpose was “inadequate to validate patent discrimination against in- terstate commerce’); Maine v. Taylor, 477 U.S. 131, 148- 149 n.19 (1986) (the City of Philadelphia standard ap- plies “not only to laws motivated solely by a desire to protect local industries from out-of-state competition, but also to laws that respond to legitimate local concerns by discriminating arbitrarily against interstate trade”).° Thus, the decision below simply cannot be reconciled with City of Philadelphia. The Alabama Supreme Court’s unjustifiably narrow un- derstanding of City of Philadelphia’s nondiscrimination principle incurably infects its conclusion (App., infra, 44a) that the Additional Fee promotes four legitimate purposes that could not be adequately served through less discriminatory means. To begin with, because the circuit court found (and the state supreme court did not dispute) that “hazardous waste generated in Alabama is just as dangerous as such waste generated in other states” (id. at 5 The Alabama Supreme Court stated (App., infra, 42a) that Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981), supported its reading of City of Philadelphia. In fact, that deci- sion reaffirmed City of Philadelphio’s conclusion that “[a] court may find that a state law constitutes ‘economic protectionism’ on proof either of discriminatory effect or of discriminatory pur- pose.” 449 U.S. at 471 & n.15 (citation omitted; emphasis added). 14 86a), the State’s health and safety justification plainly can be served as well—if not better—by a nondiscrimina- tory per-ton tax applicable to all waste disposed of within Alabama. City of Philadelphia, 437 U.S. at 629; accord New Energy Co., 486 U.S. at 279.° Alabama’s goal of conserving landfill space also may be achieved through an even-handed tax on all landfilled waste regardless of origin. See City of Philadelphia, 437 U.S. at 627 (“a State may not accord its own inhabitants a preferred right of access over consumers in other States to natural resources located within its borders’). Simi- larly, Alabama’s concern about transportation risks can be addressed as well or better by means of a nondiscrimi- natory tax on the transportation of hazardous materials on Alabama roads. See American Trucking Ass’ns, Inc. V. Secretary of State, 1991 Me. Lexis 148 (Me. June 17, 1991); /ilinois v. General Electric Co., 683 F.2d 206, 214 (7th Cir. 1982), cert. denied, 461 U.S. 913 (1983). Finally, it is undisputed that any costs and burdens that Alabama might be forced to incur some time in the fu- *The court below relied (App., infra, 43a-44a) on Maine v. Taylor, supra, which involved a Maine statute that banned the importation of out-of-state baitfish. This Court measured the con- stitutionality of the statute under the strict scrutiny standard applicable to laws that discriminate against interstate commerce. It upheld the statute only because Maine had “legitimate reasons, ‘apart from their origin, to treat [out-of-state baitfish] differ- ently.’” Jd. at 152 (quoting City of Philadelphia, 437 U.S. at 627). The out-of-state baitfish had a physical characteristic—the pres- ence of a parasite—that was “not common to wild fish in Maine” and, in addition, shipments of out-of-state baitfish could include non-Maine species that “could disturb Maine’s aquatic ecology to an unpredictable extent.” 477 U.S. at 141. The State proved that no measure short of a complete ban would allow the State effec- tively to protect its delicate ecological balance. Taylor thus rested squarely on this Court’s determination that the record in that case established that out-of-state baitfish were in fact different from and posed a substantially different threat to the environment than in-state baitfish. Taylor is inapplicable here because there is no such difference between a ton of Alabama waste and a ton of waste generated in other states. 15 ture as a result of a ton of hazardous waste that is disposed of today will not vary depending on the waste’s state of origin. See Tr. 364 (testimony of ADEM official Sue Robertson). Accordingly, the State’s desire to provide a financial safeguard against the assertedly uncertain fu- ture costs and burdens associated with the present disposal of hazardous waste—to the extent such a safeguard is necessary or even appropriate given the federal protec- tions already in place (see pages 2-5, supra)—plainly can be satisfied through nondiscriminatory taxation or regu- lation of all hazardous waste disposed of in Alabama.‘ In sum, the unconstitutionality of the Additional Fee is clear under this Court’s settled Commerce Clause juris- prudence. B. The Decision Below Squarely Conflicts With Those Of Other Lower Courts Invalidating Statutes That Facially Discriminate Against Out-of-State Waste. The Alabama Supreme Court’s decision creates a square conflict among the lower courts concerning the constitu- tionality of state statutes that facially discriminate against waste generated out-of-state. Prior to the decision below, four federal courts of appeals, relying on City of Phila- delphia, had held such statutes invalid under the Com- merce Clause. See NSWMA, supra; Washington State Building & Construction Trades Council v. Spellman, 684 7In fact, the Additional Fee does not provide a safeguard of any kind because the revenues are not set aside in an environmental emergency fund, but instead are “deposited into the general bud- getary fund of the state to be used for general operations * * *.” Ala. Code § 22-30B-3. Moreover, to the extent the court below believed that the Addi- tional Fee compensated for other taxes paid by in-state generators of hazardous waste, it erred by failing to analyze the fee under the “compensatory tax” doctrine. This Court has made clear that the doctrine applies only if the tax on interstate activity merely coun- terbalances a “substantially equivalent” tax on intrastate activity. See, e.g., Maryland v. Louisiana, 451 U.S. 725, 759 (1981). Aiabama never has identified a tax that falls exclusively on in-state waste and is “substantially equivalent” to the Additional Fee. 16 F.2d 627 (9th Cir. 1982), cert. denied, 461 U.S. 913 (1983) ; General Electric Co., 683 F.2d at 213-214; Hard- age V. Atkins, 582 F.2d 1264, 1266 (10th Cir. 1978).* The reasoning employed by the Alabama Supreme Court is directly contrary to these decisions. For example, the Eleventh Circuit concluded in NSWMA that absent proof that out-of-state waste differs from waste generated in Alabama “on the basis of type of waste or degree of dangerousness,” Alabama could not subject out-of-state waste to stricter regulation. 910 F.2d at 721. See also Spellman, 684 F.2d at 631 (“[t]he State of Washington neglects to address * * * the manner in which local waste, transported and stored within Washington has superior safety and environmental] virtues over waste produced else- where and similarly controlled by state regulatory meas- ures”). The circuit court applied the same standard in the present case. App., infra, 85a-86a. The Alabama Supreme Court, on the other hand, upheld the facially dis- criminatory statute even though it did not dispute the circuit court’s finding that there was no qualitative dis- tinction between waste generated within Alabama and waste generated in other states. Moreover, these federal courts have applied City of Philadelphia without regard to subjective motivation un- derlying the discriminatory statute. Indeed, the Eleventh Circuit expressly concluded in NSWMA that the statute there at issue was an “honorable and well intentioned” attempt to “com{e| to grips with environmental prob- lems” (910 F.2d at 725), but nonetheless struck it down *A number of federal district courts have reached the same conclusion. See Chemical Waste Management, Inc. v. Templet, 1991 U.S. Dist. Lexis 9492 (M.D. La. July 9, 1991); National Solid Waste Management Ass'n V. Voinovich, 763 F. Supp. 244 (S.D. Ohio 1991), appeal pending, No. 91-3466 (6th Cir.); Hazardous Waste Treatment Council Vv. South Carolina, 32 E.R.C. 1646 (D.S.C. 1991), appeal pending, No. 91-2317 (4th Cir.); Government Sup- pliers Consolidating Servs. Vv. Bayh, 753 F. Supp. 739 (S.D. Ind. 1990); Industrial Maintenance Serv. V. Moore, 677 F. Supp. 436 (S.D. W. Va. 1987). 17 under City of Philadelphia, Id. at 721.° Accord General Electric Co., 683 F.2d at 213. The Alabama Supreme Court’s decision thus conflicts with the cited court of ap- peals decisions in approach as well as in result. The conflict between the Alabama Supreme Court and the Eleventh Circuit is particularly unacceptable because of the effects of the Tax Injunction Act, 28 U.S.C. § 1341, which requires that most challenges to tax statutes be brought in state court. As a result of the Alabama Su- preme Court’s anomalous decision, one Commerce Clause standard will apply to Alabama’s non-tax measures, which may be challenged in federal court, while a conflicting rule will apply to discriminatory Alabama taxes, which may be challenged only in state court. The Court should grant certiorari to eliminate this double standard. Finally, review is warranted because this issue arises with considerable frequency. A number of states have adopted laws and regulations that facially discriminate against interstate commerce in waste; Commerce Clause challenges are currently pending against the laws and regulations of six such states. National Solid Waste Management Ass’n V. Voinovich, supra; Hazardous Waste Treatment Council v. South Carolina, supra; National Solid Wastes Management Ass’n V. Jorling, Civ-90-1288A (W.D.N.Y.); Empire Sanitary Landfill, Inc. v. Pennsyl- vania, No. 90-187-W (Pa. Envtl. Hearing Bd.) ; Gilliam County Vv. Department of Environmental Quality, No. A68441 (Or. Ct. App.). The decision below could affect the resolution of these cases and might prompt additional states to enact discriminatory barriers to the interstate *The Alabama Supreme Court suggested (App., infra, 40a-41a) that the Eleventh Circuit’s decision was distinguishable because the Additional Fee “has specifically been found by the legislature to be an effective way to deal with health and environmental hazards to Alabamians created by hazardous waste imported here from other states.” In fact, however, the legislative findings accompanying the statute invalidated by the Eleventh Circuit clearly reflect the very same concerns that motivated Act No. 90-326. See Alabama Act No. 89-788, Section 1(9)-1(14). 18 movement of waste. This Court should grant certiorari and reaffirm that the Commerce Clause prohibits this kind of discriminatory legislation. Il. THE ALABAMA SUPREME COURT’S DECISION UPHOLDING THE $25.60 BASE FEE CONFLICTS WITH DECISIONS OF THIS COURT AND OTHER COURTS ON RECURRING ISSUES CENTRAL TO THIS COURT’S COMMERCE CLAUSE JURISPRU- DENCE. Alabama did not rely solely on express discrimination against interstate commerce to achieve its goal of ob- structing the disposal of out-of-state waste in Alabama. The $25.60 per ton Base Fee—though facially neutral— also furthers the State’s discriminatory plan. The Base Fee applies only to waste disposed of at “commercial” hazardous waste disposal facilities; it ex- empts waste disposed of at all other facilities—i.e., facili- ties that dispose of waste generated on site or that do not charge a disposal fee. It is undisputed that essen- tially all out-of-state hazardous waste shipped to Alabama for disposal is disposed of at a commercial hazardous waste disposal facility (principally the Emelle facility) and therefore is subject to the Base Fee. At the same time, virtually all of the hazardous waste that is disposed of at other disposal facilities—and hence is exempt from the Base Fee—is generated within Alabama. This exempt waste makes up most of the Alabama-generated hazard- ous waste disposed of within the State. See page 5 & n.2, supra. By carving out a substantial exemption from the tax that, as a practical matter, is available only to Alabama- generated waste, Alabama has succeeded in applying the tax to virtually all interstate waste disposed of within the State, but to only a small percentage of Alabama- generated waste. The use of “commercial” as a proxy for “out-of-state” thus ensures that the economic burden of the tax is borne disproportionately by interstate com- merce. 19 Certainly there is nothing inherent in the nature of a waste disposal tax that justifies the distinction that Ala- bama has drawn. Act No. 90-326 taxes “disposal,” which it defines broadly as: [t]he discharge, deposit, injection, dumping, spilling, incineration, leaking or placing of any waste or sub- stance into or on any land or water so that such waste or substance or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters including groundwaters * * * . Ala. Code § 22-30B-1(2). This definition encompasses the landfilling of hazardous waste, as well as certain forms of treatment or storage—e.y., methods utilizing surface im- poundments or waste piles. The definition thus recognizes that it is the character of the waste and the means by which it is disposed of, treated, or stored—not the type of facility at which these management activities take place —that is relevant to the State’s putative health and safety purposes. Those purposes would be implicated equally by every single ton of hazardous waste “discharge|d], de- positted] * * * or placfed]” on land or water in Ala- bama regardless of whether the facility doing so is “com- mercial.” '"° Targeting “commercial” facilities alone serves no purpose other than conferring an advantage on politi- cally powerful in-state generators of hazardous waste." 10 Indeed, witnesses for both sides testified that the Emelle facility is better designed, and generally less likely to cause harm to public health or the environment, than the facilities not covered by the tax. Tr. 396 (Robertson); Henson Dep. 66; Brumond Dep. 279-281. 11The Alabama Supreme Court, in rejecting CWM’s equal pro- tection challenge to the Base Fee, offered several justifications for the distinction between “commercial” facilities and other facilities. Principally, it asserted that the distinction is justified by the risk inherent in the transportation of waste. App, infra, 23a-24u. But the tax does not single out waste that is transported in Alabama: waste generated on-site at the Emelle facility is taxed even though it is not transported, while waste transported for disposal at other 20 This is not the first time that a case has reached this Court involving a state statute crafted on the basis of industry characteristics that serve as proxies for dis- tinguishing interstate commerce from intrastate com- merce. In McKesson Corp. v. Division of Alcoholic Beverages & Tobacco, 110 S. Ct. 2238 (1990), Flor- ida had first enacted a tax statute expressly exempt- ing beverages made from “Florida-grown” crops. After this Court struck down a similar statute in Bacchus Imports, Ltd. yv. Dias, 468 U.S. 263 (1984), the State sub- stituted a law that deleted the references to “Florida- grown” and “replaced them with special rate reductions for certain specified citrus, grape, and sugarcane prod- ucts, all of which are commonly grown in Florida and used in alcoholic beverages produced there.” 110 S. Ct. at 2243 (footnote omitted). The statute no longer facially dis- criminated against interstate commerce, but—because the specified beverages were produced disproportionately within Florida and therefore served as a proxy for intra- state commerce—-it discriminated just as_ effectively against interstate commerce in its practical operation. The Florida Supreme Court held that the statute there- fore violated the Commerce Clause. That holding was not disputed before this Court, which observed that the Florida Supreme Court’s decision “rested on established principles of Commerce Clause jurisprudence.” Jd. at 2247 n.15. facilities is not taxed (as long as no disposal fee is charged). The court also stated (ibid.) that commercial facilities pose special problems because they accumulate greater amounts of waste than other facilities. Yet a per-ton tax on waste already takes this asserted fact fully into account. Finally, the court observed (id. at 24a) that the State need not treat commercial and noncommercial activities the same for tax purposes. While that observation may be true as a general matter, it is irrelevant where the taxed ac- tivity is disposal, not sales. In any event, even if any of the court’s justifications for the State’s distinction suffices to meet the lenient rational basis test applied under the Equal Protection Clause, all plainly fall far short of justifying discrimination against interstate commerce. 21 The Base Fee has a discriminatory effect that is in- distinguishable from that of the statute struck down in McKesson. The Alabama Supreme Court’s decision up- holding the Base Fee in spite of that effect thus conflicts with McKesson (as well as the decisions of several other state and federal courts) and diverges sharply from this Court’s precedents. Review of that decision is plainly warranted. A. The Base Fee Discriminates Against Interstate Com- merce In Violation Of The Commerce Clause. 1. This Court has made clear on numerous occasions that a state law must be assessed under the strict stand- ard applicable to facially discriminatory statutes if it discriminates against interstate commerce in its practical operation. See, e.g., Amerada Hess Corp. V. Director, Di- vision of Taxation, 490 U.S, 66, 75, 76 (1989) ; American Trucking Ass’ns, Inc. Vv. Scheiner, 483 U.S. 266, 286 (1987); Hunt v. Washington State Apple Advertis- ing Comm’n, 432 U.S. 333, 350-353 (1977); Nippert v. City of Richmond, 327 U.S. 416, 431 (1946); Best & Co. v. Maxwell, 311 U.S. 454, 456 (1940). The fact that the law might be facially neutral is not dispositive of the con- stitutional inquiry because “|t]|he commerce clause forbids discrimination, whether forthright or ingenious.” Best & Co., 311 U.S. at 455. Thus, the Court has condemned facially neutral statutes that effect “ingenious” discrimination in a multitude of contexts. For example, it repeatedly has struck down facially neutral taxes on persons soliciting orders for merchandise. Such taxes, as a practica] matter, fall more heavily on out-of-state businesses, which, unlike their local competitors, may find it economically infeasible to maintain a regular retail outlet in the taxing jurisdiction and therefore have to employ solicitors to reach customers there. See, e.g., Nippert, supra; Robbins v. Shelby County Taxing Dist., 120 U.S. 489 (1887). The Court also has invalidated flat truck taxes because the effect of such taxes is to impose a heavier per-mile cost on trucks 22 engaged in interstate operations than on trucks engaged in intrastate operations. See Scheiner, 483 U.S. at 284- 256. And it has struck down a requirement that apples bear the applicable federal grade rather than a state grade because the effect of that requirement was to eliminate the competitive advantage enjoyed by producers of apples from other states with stricter grading systems. Hunt, 432 U.S. at 351-352. As we have discussed (see page 18, supra), the Base Fee is gerrymandered to reach virtually all interstate commerce, while exempting as much intrastate commerce as possible. That discriminatory effect requires that the constitutionality of the Base Fee be determined under the strict scrutiny test. Any doubt about the necessity of strict scrutiny review here is eliminated by the strong evidence of the State’s discriminatory intent. As the Third Circuit has observed, it May sometimes be difficult to determine whether a fa- cially neutral statute that imposes disproportionate bur- dens on interstate commerce should be analyzed under the strict scrutiny test or the Pike balancing test. Where there is evidence of discriminatory motive and discrimina- tory effect, however, there can be no doubt that strict scrutiny is warranted. Norfolk Southern Corp. v. Oberly, S22 F.2d 388, 400-401 & n.18 (3d Cir. 1987). In Hunt, for example, this Court discussed evidence of the State’s discriminatory motive to bolster its conclusion that the statute discriminated in effect against interstate com- merce (432 U.S. at 352). Here, there is abundant evidence of discriminatory in- tent. The entire purpose of Act No. 90-326 was to ob- struct interstate commerce in waste. See pages 6-7, supra. '? Indeed, this Court repeatedly has stated that evidence that a law was motivated by an intent to discriminate against inter- state commerce is by itself sufficient to trigger strict scrutiny under the Commerce Clause. See, e¢.g., Amerada Hess, 490 US. at 75, 76; Bacchus Imports, 468 U.S. at 270: Clover Leaf Creamery 449 U.S. at 471 n.15. . 23 In view of the clear evidence of both discriminatory effect and discriminatory intent, there can be no doubt that the Base Fee discriminates against interstate commerce in violation of the Commerce Clause."* 2. The Alabama Supreme Court’s contrary conclusion rests on a misunderstanding of this Court’s precedents. The Alabama court stated that CWM had failed to estab- lish a discriminatory effect because “|t|he mere fact * * * that most of its customers are out-of-state gen- erators does not establish discrimination against inter- state commerce.” App., infra, 19a (citing C7T'S Corp. V. Dynamics Corp. of America, 481 U.S, 69 (1987); Com- monwealth Edison Co. v. Montana, 453 U.S. 609 (1981) ; and Exxon Corp. Vv. Maryland, 4837 U.S. 117 (1978)). But we rely on more than the identity of our customers. We contended below and argue before this Court that the Base Fee has a discriminatory effect because it was care- fully drafted to include virtually all interstate hazardous waste disposed of within Alabama and exclude virtually all Alabama hazardous waste. The express exemption of noncommercial hazardous waste facilities thus has the practical effect of shifting a disproportionate tax burden to interstate commerce. Certainly the cases cited by the Alabama Supreme Court do not support its refusal to apply strict scrutiny. In Commonwealth Edison, the challenged coal severance tax applied evenhandedly to all coal mined in Montana, regardless of the coal’s ultimate destination; coal] mined for use in-state was not exempted from the tax. Out-of- state users thus bore the burden of the tax in exact proportion to the amount of coal they used. Accordingly, this Court held, “there |was]| no real discrimination” re- quiring application of strict scrutiny. 453 U.S. at 619. 13 For the reasons discussed above in connection with the Addi- tional Fee, the Base Fee does not further a legitimate purpose that cannot be served adequately by nondiscriminatory means. The State could accomplish its purposes through an across-the-board per-ton tax on all hazardous waste disposed of or transported in Alabama. 24 See also CTS Corp., 481 U.S. at 87 (Indiana’s facially neutral anti-takeover statute did not discriminate against interstate commerce in its practical operation because it “ha{d| the same effects on tender offers whether or not the offeror |was] a domiciliary or resident of Indiana’) ."* If the Base Fee applied to all hazardous waste dis- posed of in Alabama and if CWM’s claim merely were that most hazardous waste disposed of in Alabama (and hence subject to the fee) is from out of state, this case would be similar to CTS and Commonwealth Edison. But the Base Fee does not apply to a// hazardous waste dis- posed of in Alabama; instead it has been carefully drawn to apply only to waste disposed of at commercial hazardous waste disposal facilities, with the result that, as a prac- tical matter, it applies almost exclusively to out-of-state waste. Surely if Montana had exempted “noncommercial” coal mines from the severance tax and if it turned out that virtually all of the coal from such mines was used within Montana, the Court would have found that the severance tax discriminated against interstate commerce in its practical effect. Indeed, under the Alabama Supreme Court’s apparent view that statutory exemptions are irrelevant in deter- 4 Exxon Corp., supra, is even less apposite. That case involved a Maryland statute that barred petroleum refiners and producers from operating retail service stations within the state. The plain- tiffs argued that the statute discriminated against interstate com- merce because there were no Maryland-based refiners or producers. The Court rejected the argument, reasoning that while the statute prevented some interstate companies—i.e., the refiners and pro- ducers—from operating service stations, it did not bar other inter- state companies—those not engaged in refining and producing— from participating in the Maryland retail market. Because the statute did not discriminate against all interstate operators—it did not apply to the “several major interstate marketers of petroleum that own and operate their own retail gasoline stations [in Mary- land |”—the statute did not discriminate in its practical operation. 437 U.S. at 125-126. Here, by contrast, Alabama has imposed the Base Fee on virtually all out-of-state waste, while exempting a large percentage of in-state waste. 25 mining whether a tax discriminates against interstate commerce in its practical effect, the statute in McKesson should have been upheld on the ground that it taxed all alcoholic beverages other than those few categories ex- empted in the statute. The fact that all of the exempt beverages were produced in Florida would have been ir- relevant. That narrow view of discrimination against interstate commerce flies in the face of this Court’s precedents. B. The Decision Below Exacerbates The Conflict Among The Lower Courts Regarding The Circum- stances In Which The Strict Scrutiny Test Should Be Applied To Facially Neutral State Laws. The issue presented by the Alabama Supreme Court’s decision regarding the Base Fee—when should a facially neutral statute be held to discriminate against interstate commerce—is an important question on which the lower courts are in conflict. This Court should grant certiorari to provide guidance regarding this issue. To begin with, the role of evidence of discriminatory motive is a matter urgently requiring clarification. Such evidence has been held relevant in shedding light on the practical effect of a facially neutral statute. Continental Illinois Corp. Vv. Lewis, 827 F.2d 1517, 1521-1523 (11th Cir. 1987), vacated as moot, 110 S. Ct. 1249 (1990); Oberly, 822 F.2d at 400-401 n.18."° The Alabama Supreme Court has now taken the diametrically opposite view, hold- ing such evidence “irrelevant.” App., infra, 19a-20a n.2. The role of intent evidence is of course an issue that can arise in every Commerce Clause case and, for that reason, clear guidance for the lower courts is essential. This Court heard argument on the proper role of such evidence in Lewis v. Continental Bank Corp., 110 S. Ct. 1249 (1990), but did not reach the question because subsequent federal legislation rendered the case moot. This case represents an opportunity to resolve that im- portant issue. 15 This Court has even stated that evidence of such a motive by itself triggers strict scrutiny review. See page 22 n.12, supra. 26 Second, the decision below exacerbates a conflict regard- ing the standards for ascertaining whether a facially neutra! statute discriminates against interstate commerce in its practical effect. Several lower courts have followed this Court’s lead and invalidated facially neutral statutes structured so as to impose a disproportionate burden on interstate commerce. For example, the Ohio Supreme Court applied this rationale to strike down a coal use tax whose rate varied inversely with the sulphur content of the coal. Finding that virtually all Ohio coal had a high sulphur content, while a significant amount of coal from nearby states had:a low sulphur content, the Ohio Supreme Court concluded that the tax scheme discriminated against out-of-state coal in its practical operation. Dayton Power & Light Co. v. Lindley, 58 Ohio St. 2d 465, 391 N.E.2d 716 (1979). The Florida Supreme Court utilized the same approach in McKesson, striking down the facially neutral liquor tax because, as noted above (at 20), it contained an exemption that disproportionately benefitted in-state products at the expense of out-of-state products. Di- vision of Alcoholic Beverages & Tobacco v. McKesson Corp., 524 So. 2d 1000, 1008 (Fla. 1988), rev’d as to other issues, 110 S. Ct. 2238 (1990). See also Con- tinental Illinois Corp., 827 F.2d at 1522 (invalidating a Florida law banning new industrial savings banks be- cause the effect of that law was to foreclose the only means that out-of-state bank holding companies had to compete for Florida deposits without disturbing the alter- natives that were available only to in-state bank holding companies) ; Opinion of the Justices, 379 A.2d 782, 789 (N.H. 1977) (explaining, in an advisory opinion on the constitutionality of a proposed tax on operators of oil terminal facilities with storage capacities in excess of 500 barrels, that “[t]he line drawn at 500 barrels might have the effect of discriminating against interstate commerce if that line differentiates domestic from foreign corpora- tions”). In contrast, the Colorado Supreme Court, like the Ala- bama Supreme Court, has refused to apply strict scru- 27 tiny notwithstanding a showing that the statute at issue disproportionately benefitted intrastate commerce, See Archer Daniels Midland Co. v. State, 690 P.2d 177 (Colo. 1984). At issue in Archer Daniels was a 5¢ per gallon sales tax reduction for gasohol that was availabie only for gasohol produced at facilities with an annual production capacity of 17 million gallons or less. The record reflected that no Colorado producer had an annual production ca- pacity of over 17 million gallons, whereas over ( of the national market was excluded by the capacity limita- tion. Jd. at 192 (Lohr, J., dissenting). Despite this severely disproportionate impact, the closely-divided Colo- rado Supreme Court upheld the tax reduction provision under the Pike balancing test. The court’s decision con- flicts with the other decisions cited above. Indeed, the Florida Supreme Court expressly refused to follow it in McKesson, See 524 So. 2d at 1007. In sum, the lower courts are plainly in need of guid- ance in determining when to apply strict scrutiny to facially neutral statutes. This Court should grant certi- orari to address that question. Il. THE ALABAMA SUPREME COURT’S DECISION UPHOLDING THE CAP PROVISION ALSO WAR- RANTS REVIEW BY THIS COURT. The Alabama Supreme Court refused to subject the Cap Provision to strict scrutiny, stating: “Tonnage re- strictions which apply equally to all waste, regardless of origin, do not violate the Commerce Clause.” App., infra, 26a. The court’s conclusion that the Cap Provision does not discriminate against interstate commerce—and _ its ultimate decision upholding that provision—are tied to its decisions upholding the Additional Fee and Base Fee and merit review for much the same reasons. To begin with, invalidation of either of the taxes on Commerce Clause grounds would necessitate invalidation of the Cap Provision. See App., infra, 92a-93a (trial court decision). The cap would be tainted because the amount was fixed at a time when the disposal volume was severely and improperly depressed by the illegal taxes. 28 The cap itself also independently discriminates against interstate commerce. To begin with, the Alabama Supreme Court’s basic premise—-that the Cap Provision is facially neutral—is plainly wrong. The provision contains an ex- ception that permits disposal of additional waste if neces- sary either to protect human health or the environment in the State or to meet Alabama’s federal obligation to assure sufficient capacity to dispose of Alabama-generated waste. By its very terms, therefore, this condition can be satis- fied only if there is a need to dispose of Alabama- generated waste. Thus, through this facially discrimina- tory exception, the State has ensured that the compara- tively smal! percentage of in-state waste disposed of at the Emelle facility never actually will be subject to the annual limit that out-of-state waste must face. Like the Base Fee, moreover, the Cap Provision applies only to “commercial” disposal facilities and therefore discriminates against interstate commerce in its prac- tical effect. By imposing the cap only on commer- cial hazardous waste facilities that disposed of over 100,000 tons of hazardous waste from July 15, 1990 through July 14, 1991, the State artfully has ensured that the annual limit will apply only to the Emelle fa- cility. Because the Emelle facility disposes of virtually all of the hazardous waste that is brought to Alabama from other states, the annual limit will serve to limit the amount of out-of-state waste that can be disposed of at the Kmelle facility in any one year, while allowing the overwhelming majority of in-state waste—the waste that is disposed of at other facilities—to escape any limit whatever. The record also contains considerable evidence that the Cap Provision, like Act No. 90-326 as a whole, was motivated by an intent to discourage the disposal of out- of-state waste in Alabama. For example, when Governor Hunt signed Act No. 90-326 into law, he stated: “An im- portant” provision in this bill will cap the amount of hazardous waste that can be dumped in Alabama at whatever amount is brought to the state over the next 12 months.” Pl. Exh. 80. See also Pegues Dep. 50-51, 29 61-62. As explained with regard to the Base Fee ( at 22), this supports the conclusion that the Cap Provision is unconstitutionally discriminatory. IV. THE QUESTIONS PRESENTED HAVE CONSIDER- ABLE PRACTICAL SIGNIFICANCE. The constitutionality under the Commerce Clause of state laws that discriminate against out-of-state waste Is a question of tremendous practical importance. ( /W M's payments for the first year the two fees have been in effect totaled approximately $34 million. And the dis- criminatory burdens on interstate commerce have di- verted a substantial amount of interstate commerce away from the Emelle facility and Alabama. The volume of waste disposed of at CWM’s Emelle facility has dropped by more than 50% in the year since Act No, 90-326 took effect. Out-of-state waste accounts for virtually all of the decline. This devastating blow to interstate commerce in general—and to CWM’s business in particular —is made permanent by the Cap Provision. The threat to interstate commerce involves more than just money. The Emelle facility plays a critical role in the safe disposal of the Nation’s hazardous waste. As the circuit court found, “Emelle received two years ago ap- proximately 17% of all hazardous wastes commercially landfilled in the United States.” App., infra, 58a. There are only five commercial hazardous waste landfills east of the Mississippi River, and only two of those are per- mitted to accept waste containing PCBs. Tr. 170 (testi- mony of Rodger Henson) ; 250 (Robertson). Interstate transportation of such waste is therefore unavoidable if the waste is to be disposed of in facilities that comply with the governing federal standards. See, ¢.g., Tr. 82 (Henson) ; 215-216 (Robertson). This is especially true with respect to the considerable amount of waste disposed of at F'melle that has been re- moved from unsafe disposal sites, as a result of either 16 At the time of the trial, only one landfill east of the Mississippi River could accept PCBs. 30 voluntary efforts or cleanups under federal and state “Superfund” programs. Virtually all of that waste comes from outside Alabama. See Tr. 55, 160 (Hen- son); 210-212 (Robertson). The significant increase in cost resulting from the Additional and Base Fees, and the permanent annual limit effectuated by the Cap Provision, will almost certainly deter cleanup efforts, thus prolonging the grave threat that these unregulated, unsafe sites pose to the public at large. That result will undermine Congress’s primary pur- pose in enacting the Superfund statute: “ ‘the prompt cleanup of hazardous waste sites.’ ” J.V. Peters & Co. Vv. Administrator, 767 F.2d 263, 264 (6th Cir. 1985) (citation omitted). By raising a significant barrier to the disposal of out-of-state waste at the Emelle facility, which provides a significant part of the Nation’s overall waste disposal capacity, Act No. 90-326 thwarts the im- portant public goal of safely disposing of this waste. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. JAMES T. BANKS ANDREW J. PINCUS * JOHN T. VAN GESSEL KENNETH S. GELLER Chemical Waste EVAN M. TAGER Management, Inc. Mayer, Brown & Platt 3003 Butterfield Road 2000 Pennsylvania Ave., N.W. Oak Brook, Illinois 60521 Washington, D.C. 20006 (708) 218-1500 (202) 778-0628 DRAYTON PRUITT, JR. FOURNIER J. GALE III Pruitt, Pruitt & H. THOMAS WELLS, Jr. Watkins, P.A. Maynard, Cooper, Frierson Courthouse Square & Gale, P.C. P.O. Box 1037 1901 Sixth Avenue, North Livingston, Alaboma 35470 24004 mSouth/Harbert Plaza (205) 652-9627 Birmingham, Alabama 35202 (205) 254-1000 Counsel for Petitioners SEPTEMBER 1991 * Counsel of Record APPENDICES la APPENDIX A SUPREME COURT OF ALABAMA SPECIAL TERM, 1991 1901043 Guy Hunt, as Governor of the State of Alabama Vv. CHEMICAL WASTE MANAGEMENT, INC. 1901044 JAMES M. SIZEMORE, JR., as Commissioner of the Alabama Department of Revenue; and the ALABAMA DEPARTMENT OF REVENUE v. CHEMICAL WASTE MANAGEMENT, INC. 1901106 CHEMICAL WASTE MANAGEMENT, INC. v. THE ALABAMA DEPARTMENT OF REVENUE, et al. Appeals from Montgomery Circuit Court (CV-90-1098) 2a SHORES, JUSTICE. In April 1990, the Alabama Legislature enacted Act No. 90-326 (the “Act”), effective July 15, 1990, Code of Ala, 1975, § 22-30B-1 et seq. (Supp. 1990), which was signed into law by the Governor. The Act imposes two fees on the disposal of hazardous waste at commercial facilities in Alabama. A “Base Fee” of $25.60 per ton was imposed on all waste and substances disposed of at commercial facilities, regardless of the state of origin. An “Additional Fee” of $72.00 per ton was imposed on all waste and substances generated outside the State of Alabama and disposed of at Alabama facilities. The Act also included a “Cap” provision, limiting the amount of hazardous waste that can be disposed of at any affected facility in any one-year period. Under the Cap provision, the amount of hazardous waste disposed of during the first year that the Act’s new fees are in effect (the “benchmark period”), becomes the permanent ceiling in subsequent years. The Cap provision applies only to commercial facilities that dispose of over 100,000 tons of waste per year. The facility at Emelle, Alabama, is the only facility in this category. 4 On June 5, 1990, Chemical Waste Management, Inc. (“CWM”), filed suit for declaratory relief against the Alabama Department of Revenue, James N. Sizemore, Jr., as Commissioner, and Guy Hunt as Governor (“the State”). The suit challenged the constitutionality of Act No. 90-326, Code of Alabama 1975, § 22-30B-1 et seq. CWM alleged that the provisions of the Act violate the Commerce Clause of the United States Constitution; the Equal Protection Clause of the United States Constitu- tion and its equivalents under the State Constitution; and the Due Process Clause of the State Constitution. CWM further contends that the Act is a “revenue bill” enacted during the last five days of the legislative session in vio- lation of Article IV, § 70, of the Alabama Constitution. 3a CWM further contends that the Cap provision violates the Commerce, Due Process, and Equal Protection Clauses of the United States Constitution and is preempted by various federal statutes.’ CWM also sought a preliminary and permanent injune- tion enjoining the State from enforcing, applying, or attempting to enforce the Act. Dr. Claude Earl Fox, state health officer, was allowed to intervene on behalf of the State Board of Health. Governor Hunt filed a counterclaim for declaratory relief, asking that the trial court find and declare the Act constitutional. On February 28, 1991, the trial judge, the Honorable Joseph D. Phelps, declared the Base Fee and Cap provisions of the Act to be valid and con- stitutional. However, he declared the Additional Fee im- posed on out-of-state generated waste to be impermissible and invalid as a violation of the Commerce Clause of the United States Constitution. The State appeals only that aspect of the trial judge’s order pertaining to the Additional Fee. CWM appeals from the trial judge’s holding that the Base Fee and Cap are constitutional. We affirm the trial judge’s holdings that the Base Fee and Cap provisions of the Act are valid and constitutional. We reverse the holding of the trial judge that the Additional Fee violates the Commerce Clause. The legislative findings underlying Act No. 90-326, as quoted by the trial judge in his order of February 28, 1991, are as follows: 1(1) the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. $6901 et seq.; (2) the Toxic Substances Control Act (“TSCA”), 15 U.S.C. $2601 et seq.; (3) the Comprehensive En- vironmental Response Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq. 4a “Act § 1, Code § 22-30B-1.1 Legisiative findings. “The Legislature finds that: “(1) The state is increasingly becoming the nation’s final burial ground for the disposal of hazardous wastes and materials; (2) The volumes of hazardous wastes and sub- stances disposed in the state have increased dra- matically for the past several years; “(3) The existence of hazardous waste disposal ac- tivities in the state poses unique and continuing problems for the state; “(4) As the site for the ultimate burial of hazardous wastes and substances, the state incurs a permanent risk to. the health of its people and the maintenance of its natural resources that is avoided by other states which ship their wastes to Alabama for dis- posal ; “(5) The state also incurs other substantial costs related to hazardous waste management including the costs of regulation of transportation, spill clean- up and disposal of ever increasing volumes of haz- ardous wastes and substances; “(6) Because all waste and substances disposed at commercial sites for the disposal of hazardous waste and hazardous substances, whether or not such waste and substances are herein defined as hazardous, con- tribute to the continuing problems created for the state, and because state and federal definitions of ‘hazardous wastes’ have regularly changed and are likely to change in the future to include waste not previously defined as hazardous, it is necessary that all waste and substances disposed of at a commercial site for the disposal of hazardous waste or hazardous substances be included within the requirements of this act; ~ va “(7) The legislature finds that the public policy of the state is to encourage business and industry to develop technology that will eliminate the generation of hazardous waste and substances... . “(8) Since hazardous wastes and substances gener- ated in the state compose a small proportion of those materials disposed of at commercial disposal sites located in the state, present circumstances result in the state’s citizens paying a disproportionate share of the costs of regulation of hazardous waste trans- portation, spill cleanup and commercial disposal facilities. Persons, firms or corporations which gen- erate and dispose of such waste and substances in Alabama presently are among the taxpaying citizens of this state who must bear the burden of regulation, inspection, control and clean-up of hazardous waste sites; addressing the public health problems created by the presence of such facilities in the state; and, preserving this state’s environment while those gen- erating this waste in other states and shipping it to Alabama for disposal presently are not. This act attempts to resolve that inequity by requiring all generators of waste being disposed of in Alabama to share in that. financial burden. “(9) The operators of commercial sites for the dis- posal of hazardous wastes or hazardous substances have the ability to control the flow of said wastes or substances into said sites. Further, said operators, by exercise of said ability to control the flow of wastes or substances disposed at sites during a twelve-month period [need] only to enlarge the amount of wastes disposed during the next- tweilve- month period by a proportionate amount. The health of the population of this state and the soundness of the environment are and would be threatened by such an exercise of control. Said exercise of control could cause an artificial decrease in fees during the twelve month period beginning July 15, 1990, and ending 6a July 14, 1991. To prevent threats to the health of the population of this state and to the soundness of the environment of this state and to prevent an arti- ficial decrease in fees during the twelve-month period beginning July 15, 1990, and ending July 14, 1991, this act provides a cap on the amount of hazardous waste and hazardous substances disposed during the twelve-month period beginning October 1, 1991, said cap being a function of the amount of hazardous waste and hazardous substances disposed during the twelve-month period beginning July 15, 1990, and ending July 14, 1991.” The pertinent provisions of Act No. 90-326 are as follows: Act § 3(a), Code § 22-30B-2(a) (the Base Fee): “In addition to other fees levied, there is hereby lev- ied a fee to be paid by the operators of each com- mercial site for the disposal of hazardous waste, or hazardous substances in the amount of $25.60 per ton for all waste or substances disposed of at such site.” Act §3(b), Code § 22-80B-2(b) (The Additional Fee): “For waste and substances which are generated out- side of Alabama and disposed of at commercial sites for the disposal of hazardous waste or hazardous substances in Alabama, an additional fee shall be levied at the rate of $72.00 per ton.” Act § 9, Code § 22-30B-2.3 (the Cap Provision): “Any commercial site for the disposal of hazardous waste or hazardous substances that disposes of in excess of 100,000 tons of hazardous waste or hazard- ous substances during the twelve-month period begin- ning July 15, 1990, and ending July 14, 1991, (here- —_ Ta inafter referred to as the benchmark period ) shall not, during any twelve-month period beginning Cc- tober 1, 1991, and any twelve-month period there- after, dispose of more than the tonnage received dur- ing said benchmark period. Such restriction shall be in addition to any other ban or restrictions on dis- posal imposed by any regulatory authority. Provided, however, that the Governor or the Governor’s des- ignee may allow disposal of hazardous wastes or hazardous substances in excess of the tonnage dis- posed of during the benchmark period if such action is determined by the Governor or the Governor's designee to be necessary to protect human health or the environment in the state, or to allow the state to comply with its obligations to assure disposal capac- ity pursuant to applicable state or federal Jaw as determined by the Governor or his designee. Act § 2, Code § 22-30B-1 (Definitions): “(3) HAZARDOUS SUBSTANCE(S). Any sub stunce defined as a hazardous substance pursuant to 42 U.S.C. §9601(14), as amended, or listed as a hazardous waste pursuant to the Code of Alabama 1975, Section 22-30-10, as amended. “(4) HAZARDOUS WASTE(S). Those wastes de- fined at Section 22-30-3(5), Code of Alabama 1975, as amended, or listed pursuant to Section 22-30-10, Code of Alabama 1975, as amended, or department regulations.” The trial judge made findings of fact in his order of February 28, 1991, which we quote below and approve: “BINDINGS OF FACT “1. Based on statements and representations made by the parties during pretrial proceedings, the Court accepts the legislative findings supporting Act No. 8a 90-326. In addition, the Court finds that the evidence at trial adequately supports the legislative findings. The Court further finds that the Base Fee and Cap provisions of Act No. 99-326 which this Court deter- mines and finds to be constitutionally permissible are integral parts of a regulatory procedure which ap- propriately addresses the concerns expressed by the Alabama Legislature when it enacted the ‘Hazardous Wastes Management Act of 1978,’ The following statement of Legislative Finding, Purpose and Intent is set forth in this 1978 legislation: “Section 2. Legislative Finding, Purpose and In- tent—The Legislature finds that increasing quanti- ties of hazardous wastes are being generated in the State and that without adequate safeguards from the point of generation through handling, processing and final disposition, such wastes can create conditions which threaten human or animal health and the en- vironment. The Legislature, therefore, declares that in order to minimize and control any such hazardous conditions it is in the public interest to establish and to maintain a statewide program to provide for the safe management of hazardous wastes.’ “Acts 1978, 2nd Ex.Sess., No. 129, p. 1843. “A. The Emelle Facility “2. CWM is a Delaware corporation with its prin- cipal place of business in Oak Brook, Illinois. CWM is the owner and operator of one of the nation’s old- est and largest commercial hazardous waste land dis- posal facilities located in Emelle, Alabama (the ‘Emelle facility’). The Emelle facility is a hazardous waste treatment, storage, and disposal facility oper- ating pursuant to a permit issued by the Environ- mental Protection Agency (‘EPA’) under the Re- source Conservation and Recovery Act, 42 U.S.C. $ 6901 et seg. (‘RCRA’) and the Toxic Substances 9a Control Act, 15 U.S.C. § 2601 et seq. (‘TSCA’). In addition, the Emelle facility is a to > sero r state law pursuant to interim status author! yee under freemen Code § 22-30-12 (i). The Emelie facility is the only commercial hazardous waste landfill facility currently in operation in the State of Alabama. “3 In a 1973 study, EPA identified 74 potential sites for hazardous waste landfills throughout the country, of which Emelle was one. Although haz- ardous waste landfills can be designed and engineered to operate in practically every state of the United States, only a very few commercial sites presently exist. Efforts to obtain permits for new sites in other states are resisted by citizens of those states. “4. According to the testimony presented at trial, only one additional hazardous waste landfill has been permitted in the United States since the effective date of RCRA, Noveniber 17, 1980. That facility, in Last Chance, Colorado, has never operated or accepted waste and is presently for sale. “RB. The Increasing Volumes of Out-of-State Wastes at Emelle “5. Increasing amounts of out-of-state hazardous wastes are being shipped to Emelle for permanent storage from in-state generators and from those in states throughout the country. The following ton- nage has been received by Emelle in the years indi- cated: _ ere rerrr rte reer... 341,000 tons Re eee eer eee a 2 456,000 tons aon re errr car rs > 564,000 tons oe kee eee eRe eae 549,000 tons en eke eke eee sree euns 788,000 tons 10a “The increase in tonnage has resulted in a significant increase in problems with regard to regulating and supervising the disposal of hazardous waste at Emelle. Eighty-five to ninety percent of the tonnage permanently buried at Emelle is from out-of-state. Emelle received two years ago approximately 17% of all hazardous wastes commercially landfilled in the United States. “6. CWM estimates there is capacity at Emelle for another 100 years of operation. CWM has a*- mitted that without the restrictions imposed by the Alabama legislature, ‘the total annual demand for disposal capacity at the Emelle facility for hazardous waste generated out-of-state is projected to increase annually.’ (Paragraph D of Answer of CWM to Defendant Hunt’s Counterclaim.) “7. A portion of the wastes coming to Emelle are classified as non-hazardous. Some of these non- hazardous industrial wastes are sent to the Emelle facility by industries which may be seeking to reduce their own liability should these wastes become classi- fied as hazardous wastes in the future. Additionally, these non-hazardous wastes are commingled with the hazardous wastes that are landfilled at the Emelle facility and therefore for the purposes of long-range monitoring and potential cleanup, must be treated as hazardous waste in any event. EPA, moreover, has made limited progress in identifying hazardous wastes to be regulated and does not know whether it has identified 10% or 90% of existing hazardous wastes. As a result, wastes which today are deemed non-hazardous may very well in the future be deemed hazardous for one reason or another. lla “C. The Permanent Risks and Costs of Hazardous Waste Landfilling “8. It is without dispute that the wastes and sub- stances being landfilled at the Emelle facility include substances that are inherently dangerous to human health and safety and to the environment. Such waste consists of ignitable, corrosive, toxic and re- active wastes which contain poisonous and cancer causing chemicals and which can cause birth defects, genetic damage, blindness, crippling and death. Should a sudden or non-sudden discharge or release occur, hazardous wastes could pollute the environ- ment, contaminate drinking water supplies, con- taminate the ground water, and enter the food chain. Among these are arsenic, mercury, lead, chromium and cyanide. These wastes are generated by an en- tire spectrum of industry. “9. Landfilling is the least desirable means of hazardous waste disposal. Many hazardous wastes remain in the environment and do not break down. Although some wastes degrade or can be made less hazardous through treatment, many substances re- main hazardous forever. “10. Aithough hazardous wastes are now required to be solidified before being placed in a landfill, seep- age of groundwater and surface water into closed trenches at Emelle containing liquid or solidified wastes creates a poisonous liquid known as leachate. Scientists are continuing to learn more about leach- ate and water pressures. As concluded in the August, 1983 report to CWM by Golder Associates, the ac- cumulation of leachate in closed trenches will result in a ‘vertical head difference serv/ing] as the driv- ing force which will eventually cause exfiltration of fluid within the landfill trenches outward into the surrounding chalk.’ The testimony at trial was that 12a it appears that leakage has already occurred with respect to at least some of the closed trenches. Leachate is presently pumped only from closed Trench 19 and open Trench 21. It is stored in above ground storage tanks with a capacity of 5 million gallons. From 10 million to 15 million gallons an- nually of leachate and surface water are gathered, stored and transported from Emelle at a cost of $2 to $3 million. “11. EPA has found that absolute prevention of migration of hazardous waste through synthetic trench liners is beyond the current technical state of the art, and that some migration will occur. The liners will probably retard migration only for the relatively short-term measured in tens of years. Al- though it appears that leachate is already seeping into the Selma chalk, it is uncertain how far it has moved and at what rate it will travel. There are widely varying estimates as to travel time. A No vember, 1987 joint report of the hazardous waste Ground-Water Task Force of EPA and the Alabama Department of | Environmental Management (‘ADEM’) entitled ‘Evaluation of Chemical Waste Management, Inc., Emelle, Alabama’, stated at page 30 as follows: “‘The transit time through the Selma chalk (“to the Eutaw Formation ... uppermost aqui- fer”) was estimated by CWM to be 10,000 years. Independent EPA estimates of transit time using conservative estimate for equation variable were 330 years and 3,000 years for estimates using Darcy’s Equation and a 2-D solute transport model, respectively... .’ “Those transit time estimates all involve compli- cated calculations based upon highly variable factors. 13a “12. The evidence shows that possibly a more serious concern is the lateral migration of leachate from the trenches following the downward gradient to the drainage areas leading to Bodka Creek, a tributary of the nearby Noxubee and Tombighbee Rivers. Although the closed trenches studied by Golder Associates in an August, 1990 report range from 50 to 150 feet apart, a CWM expert witness testified it would surprise him if there-were a migra- tion of finid from some of the closed trenches to other closed trenches; that there probably is some inter- connection between those trench walls; and that fluid could move along the near surface defects in the downgradient direction. “13. The Selma Group Chalk Formation, in which the Emelle facility is located, extends across the states of Alabama, Mississippi, Arkansas and Texas. Although the chalk generally is of low permeability and is potentially suitable for the geological contain- ment of hazardous wastes, the geologic integrity of the chalk also depends on the permeability of frac- tures, faults and other discontinuities. Faults and fractures exist throughout the Selma chalk at Emelle through which the leakage of hazardous waste and leachate may be greatly facilitated. Dr. Richard Gro- shong, a geology professor at the University of Ala- bama, testified that the faults and fractures may accelerate travel time through the Selma chalk by several orders of magnitude. According to Dr. Groshong, these rates ‘are important on a human time scale as opposed to a geological time scale.’ Tom Joiner, a former State Geologist, agreed that a ‘brittle fault’ might speed the migration of leachate through the Selma chalk. “14. Dr. Groshong testified that there is a further need to identify, map, and study the faults and frac- tures at the Emelle facility. However, there will l4a always be uncertainty with respect to the faults and fractures. “15. To monitor leachate and hazardous waste leakage, CWM has been required to install a large number of monitoring wells at Emelle. Periodic checks of those monitoring wells will be required for- ever. One CWM witness estimated the present annual costs of that monitoring system is between $100,000 and $200,000. Another CWM official estimated moni- toring costs of Emelle to be in excess of $114 million per year. It is doubtful that monitoring wells can be placed in sufficient locations to monitor all the movement of water as such monitoring may prove to be impractical. Thus, the uncertainty of whether all contamination will be detected will likely remain. Indeed, the existence of monitoring wells creates new conduits for hazardous wastes to reach underlying groundwater. “16. The Emelle facility is within an earthquake risk zone as designated by the Alabama Emergency Management Agency. There was testimony to the effect that earthquakes pose an uncertain short and long range risk to the Emelle facility. In 1886 an earthquake in Sumter County caused a one-half foot movement in the ground surface. There was evi- dence that, depending upon its severity, an earth- quake could unseal cracks in the chalks and open avenues for the movement of leachate and hazardous wastes. “D. Transportation and Spills “17. In 1989, approximately 40,000 truckloads of wastes were transported over the public highways to the Emelle facility of which approximately 34,000 to 36,000 were from out of state. As in the operation of the facility, transportation of these wastes, no matter how elaborate the precautions, also creates l5da unquantifiable risk or uncertainty to the public health and to the environment. “Some trucks destined for Emelle have been in- volved in accidents causing hazardous waste to be spilled or released into the environment. Addition- ally, several incidents of releases of hazardous wastes and noxious fumes have already occurred at the fa- cility. These risks are increased by the increasing volumes. The hazardous wastes landfilled at the Emelle facility are inherently dangerous in their transportation and movement into or from one place to another throughout the State of Alabama. That movement into and through the State of Alabama carries the potential and risk of spills, accidents and explosions that could release toxic fumes and con- taminate the groundwater and/or surface water. The increasing volumes have increased the risks and liability involved in that transportation. “E. Permanence of Dangers and Financial Risks “18. Although it will be necessary to monitor, regulate, maintain (including the pumping, collec- tion, storage, transportation and disposal of leachate from the trenches), and secure the facility forever, CWM has made no provision for the payment of such costs beyond a period of 30 years after closure. Additionally, there has been no provision for the pay- ment of any abatement, corrective, or remediation costs, compliance monitoring, third-party damages or natural resource damage. “19. Whenever CWM’s planned or unplanned ces- sation of activities at Emelle occurs, there will be substantial financial and environmental risks to the people, businesses, and corporations of Alabama. “20. Alabama has a legitimate interest in guard- ing against the various imperfectly understood en- l6a vironmental risks posed by the storage of large quantities of hazardous wastes in Alabama, as well as the risks which may be more easily identified. “F. The Legislative Classifications “91. The CWM hazardous waste facility at Emelle currently is the only commercial hazardous waste landfill in Alabama. Of the 788,000 tons of waste landfilled at Emelle during 1989, 68,000 to 69,000 tons were generated in-state, or 8.6% of the 1989 total. “92. There is only one, relatively small non-com- mercial hazardous waste landfill facility presently permitted for hazardous waste in Alabama. It is in Washington County, and it accepts only on-site gen- erated hazardous waste of approximately 4000 tons a year. “23. Closed non-commercial hazardous waste land- fills (such as Sanders Lead in Troy) are not com- parable to Emelle. They only- accepted on-site gen- erated hazardous waste and are no longer in oper- ation. “24. Non-commercial hazardous waste facilities are not comparable to commercial hazardous waste facilities. Commercial facilities are likely to involve the transportation of wastes from off-site locations, and the accumulation and disposal of relatively large quantities of hazardous wastes; most non-commercial facilities dispose of wastes on-site, and generally do not involve transportation. The amounts generated and disposed of at non-commercial facilities are far smaller than amounts disposed of at commercial fa- cilities. Accordingly, the~ public health and safety risks associated with commercial hazardous waste facilities are much greater than those associated with non-commercial facilities. 17a “25. Incinerators are not comparable to commer- cial hazardous waste landfills. Incinerators perma- nently destroy hazardous waste, leaving only a small residue which must be landfilled. “26. Should additional commercial hazardous waste landfills be permitted in Alabama, and meet the statutory criteria, the provisions of Act 90-326 would apply to them just as they apply now to CWM.” I. We first consider whether the trial court erred in holding that the Base Fee of Act No. 90-326 is consti- tutional. CWM contends the trial court erred in finding the Base Fee constitutional and. argues that it clearly discriminates against interstate commerce in violation of the Commerce Clause. CWM argues further that the Base Fee violates the Equal Protection Clause, because, it claims, the classifications are not rationally related to a legitimate state interest. CWM finally argues that the Base Fee violates the Due Process Clause. We do not find CWM’s arguments as to this issue to be persuasive. We adopt the conclusions of law stated by Judge Phelps in his order of February 28, 1991, as the decision of this Court as to this issue: “The Base Fee “(1) The Commerce Clause Challenge “As a threshold matter, the Court concludes that the Base Fee regulates evenhandedly and without regard to origin. The Base Fee effectuates a legiti- mate local interest. The legisiature found, among other things, that: the volume of hazardous wastes being disposed of in Alabama has increased dra- matically; the state incurs a permanent risk to the health of its people and the maintenance of its na- tural resources; and Alabama incurs substantial eco- 18a nomic costs related to hazardous waste management such as regulatory costs and spill cleanup. Addi- tionally, the evidence at trial documented specific possible threats to human health and the environ- ment posed by the Emelle facility. Clearly, the state of Alabama has a legitimate interest in imposing fees on commercial hazardous waste facilities to address the serious financial, environmental and other risks they create. “It is well-settled that states’ regulatory powers are greatest when they address traditional matters of local concern such as environmental and natural resource regulation. Kassel v. Consolidated Freight- ways, 450 U.S. 662, 670, 101 S.Ct. 1309, 67 L.Ed.2d 580, 586 (1981). Legislative measures enacted to promote public health and safety are accorded par- ticular deference. Raymond Motor Transportation, Inc. v. Rise, 484 U.S. 429, 443, 98 S.Ct. 787, 54 L.Ed.2d 664, 676 (1978). Challenges to state public safety regulations must overcome a ‘strong presump- tion of their validity.’ Id., 434 U.S. at 444, 98 S.Ct. at 795, 54 L.Ed.2d at 677. Courts will not second- guess legislative judgments about the importance of safety justifications in comparison with the burdens on interstate commerce. Kassel, 450 U.S. at 670, 67 L.Ed.2d at 587. States retain broad authority under their general police powers to regulate matters of legitimate local concern even though interstate commerce is affected. Maine v. Taylor, 477 U.S. 131, 138 (1986). “When a police power regulation is challenged un- der the Commerce Clause, one of two tests is ap- plied. If the regulation is discriminatory on its face or in practical effect, the state must show that (1) the regulation has a legitimate local purpose; (2) the regulation serves this interest; and (3) reason- able nondiscriminatory alternatives, adequate to pre- 19a serve the legitimate local purpose, are not available. Hughes v. Oklahoma, 441 U.S. 322, 336 (1979). This is the ‘strict scrutiny’ test. “If no facial discrimination is involved, a ‘balanc- ing test’ is applied to determine the constitutional validity of statutes: ““*Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only in- cidental, it will be upheld unless the burden im- posed on such commerce is clearly excessive in relation to the putative local benefits.’ Pike v. Bruce Church, 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970). If a legitimate local purpose exists, ‘the extent of the burden that will be toler- ated will of course depend on the nature of the local interest involved, and on whether it could be pro- moted as well with a lesser impact on interstate ac- tivities.’ Jd. “CWM has failed to establish that the Base Fee has discriminatory effects on interstate commerce. The mere fact, as CWM argues, that most of its customers are out-of-state generators does not estab- lish discrimination against interstate commerce. The United States Supreme Court has stated that even if the burden of a state regulation falls most often on out-of-state companies, this burden ‘does not, by itself, establish a claim of discrimination against interstate commerce.’ CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69 (1987); see also Common- wealth Edison Co. v. Montana, 453 U.S. 609 (1981); Exxon Corp. v. Gov. of Maryland, 437 U.S. 117, 126 (1978). The strict scrutiny test does not apply in these circumstances.” —_—— * “The Court deems irrelevant any evidence attributing to any state officials any motive of discriminating against interstate 20a “The Base Fee does not facially discriminate against out-of-state waste. All waste disposed of at Alabama commercial hazardous waste facilities is subject to the $25.60 fee. Consequently the Pike v. Bruce Church balancing test will be applied to assess the fee’s constitutional validity. In balancing the interests at stake, the Court finds that the burden the Base Fee imposes on interstate commerce is not clearly excessive in relation to the benefits it pro- duces. The fee benefits the state, on the other hand, by compensating it for the financial responsibilities and risks it bears on account of commercial hazard- ous waste disposal activities. Thus, a comparison of the Base Fee’s local benefits to its alleged burden on interstate commerce establishes that any such bur- den is not clearly excessive. Furthermore, to the ex- tent that the Base Fee does deter hazardous waste landfilling, the fee is a proper instrument of deter- rence.* Finally, in view of the financial, safety, en- vironmental and other objectives of Act No. 90-326 and the fact that the Base Fee falls evenhandedly on interstate and intrastate waste, it is difficult to imagine how these objectives could be accomplished in ways that have a lesser impact on interstate ac- tivities. “For these reasons, CWM’s Commerce Clause chal- lenge to the Base Fee is without merit. commerce. It is well-established that ‘[i]nquiries into [law- makers’] motives or purposes are a hazardous matter.... What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, .. .’ United States v. O'Brien, 391 U.S. 367, 383-84, 88 S.Ct. 1673, 1682-88, 20 L.Ed.2d 672, 684 (1968), cited in, CECOS Inter- national, Inc. v. Jorling, 895 F.2d 66, 73 (2d Cir. 1990).” “Similarly, in the forms which the EPA submits in connection with its waste reduction program, the agency asks states to list measures they are taking to reduce the generation of waste ; the EPA lists fees as one example of such measure.” 2la “(2) The Equal Protection Challenge “The Equal Protection Clause of the United States Constitution and similar provisions of the Alabama Constitution prohibit the State of Alabama from denying any person equal protection of the law. There is a ‘presumption of constitutionality which can be overcome only by the most explicit demon- stration that a classification is a hostile and oppres- sive discrimination against particular persons and classes.’ Lehnhausen v. Lake Shore Auto Parts Co.., 410 U.S. 356, 364-65 (1973). See also White v. Reynolds Metals Co., 558 So.2d 373 (Ala. 1989). ‘The burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.’ Madden v. Kentucky, 309 U.S. 83, 88 (1940). Unless the state statute in- volves a suspect class or a fundamental right, courts generally will not overturn the statute on equal pro- tection grounds ‘unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate pur- poses that [the court] can only conclude that the legislature’s actions were irrational.’ Pennell v. San Jose, 485 U.S. 1, 14 (1988) (quoting Vance v. Brad- ley, 440 U.S. 93, 97 (1979)). The statute must be ‘rationally related to a legitimate state interest.’ Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71, 81, 108 S.Ct. 1645, 100 L.Ed.2d 62, 74 (1988) (quoting Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 (1985)). If the state legislature’s de- termination that its regulation will serve a legiti- mate public purpose is ‘at least debatable,’ the chal- lenge to that action must fail. United States v. Carolene Products Co., 304 U.S. 144, 154 (1938). ‘|Cljourts are not empowered to second-guess the wisdom of state policies.’ Western & Southern Life Ins. Co. v. Board of Equalization, 451 U.S. 648, 670 (1981). This ‘rational relationship’ test is not diffi- 22a cult to pass. Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 881 (1985). Additionally, state regula- tions dealing with health, welfare and the economy are entitled to deferential Equal Protection review. Evergreen Waste Systems, Inc. v. Metropolitan Serv- ice District, 643 F. Supp. 127, 133 (D.Or. 1986) (citing Hughes v. Alexandria Scrap Corp., 426 U.S. 794 (1976)); Railway Express Agency v. New York, 336 U.S. 106 (1949)). State tax legislation is given great deference. White v. Reynolds Metals Co., 558 So.2d at 380. States are free to impose taxes on different trades and professions, and may vary the tax rates on different products. Jd. (quoting Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 526-27 (1959) ). Because the Base Fee provision involves neither a susrect class, such as race, nor a funda- mental right, such as free speech, this Court must analyze the statute under the above-described, lenient ‘rational relationship’ test, see Exxon Corp. v. Eager- ton, 462 U.S. 176, 195-96 (1983), asking 1) whether the provisions have a legitimate purpose, and 2) whether it was ‘reasonable for the lawmakers to believe that use of the challenged classification would promote that purpose. .. .’ Western & Southern Life Ins. Co., 451 U.S. at 668. “CWM argues that the Base Fee deprives it of equal protection of the law because it only applies to commercial hazardous waste facilities, and its Emelle operations constitute the only such facility in Alabama. The Court does not agree with this con- tention. First, the Court does not agree with the implication that CWM has somehow been ‘singled out’ because the Base Fee, as a practical matter, only applies to it. There is no evidence to suggest that Act No. 90-326 will not apply to commercial hazardous waste facilities which are sited in Ala- bama in the future. Until that time, any regulation of commercial hazardous waste facilities will neces- 23a sarily fall on CWM alone. This fact, however, does not prevent the legislature from regulating CWM’s operations.* “Second, the Court finds that the legislature’s treatment of commercial hazardous waste facilities differently from non-commercial facilities is ration- ally related to legitimate state interests. The evi- dence at trial established several reasons for the dif- ferentiation. For example, the use of commercial disposal sites poses unique health and safety risks, such as the transportation of dangerous materials to the sites with the risk of accidents involving such transportation, and the accumulation in one place of extremely large volumes of different types of waste. The number of trucks delivering hazardous waste to the Emelle facility alone was approximately 40,000 during 1989, and was expected to increase in subsequent years. Hazardous waste disposal at non-commercial facilities, however, does not involve transportation of the materials to be disposed of, with the dangers inherent in and unique to such transportation. Such facilities dispose of their waste on-site. In CECOS International, Inc. v. Jorling, 895 F.2d 66 (2d Cir. 1990), the plaintiffs argued that a state law requiring siting board approval for the ex- pansion of commercial, but not non-commercial, haz- ardous waste facilities violated equal protection. The Second Circuit rejected this argument because the state provided several reasons for applying this re- quirement to commercial facilities. The reasons in- cluded the fact ‘that there are greater risks associ- * CWM’'s claim that the legislature was motivated by improper motivations is also irrelevant for equal protection purposes. ‘[N Jo case in this Court has held that a legislative act may violate equal protection solely because of the motivations of those who voted for it.” Palmer v. Thompson, 403 U.S. 217, 224, 91 S.Ct. 1940, 1944, 29 L.Ed.2d 438 (1971), cited in CECOS International v. Jorling, supra, 895 F.2d at 73.” 24a ated with commercial facilities because hazardous wastes must be transported to the off-site commercial facility.’ Id. at 73 (emphasis supplied). The State of Alabama has offered similar reasons for the classi- fication now before the Court. “Moreover, commercial landfill facilities comprise the bulk of the hazardous waste accumulation prob- lem. The waste disposed of at commercial facilities exceeds many times the waste disposed of on site by non-commercial facilities. Additionally, without re- gard to the health, safety and environmental con- cerns, and viewing the fees simply as taxes, the legis- lature is not precluded from taxing a commercial transaction simply because it does not impose the tax on a similar non-commercial activity. Many consti- tutionally permissible tax measures treat different taxable entities in different ways. “Thus, CWM has failed to meet its burden of ne- gating every conceivable basis which might support Act No. 90-326’s differing treatment of commercial and non-commercial facilities. White v. Reynolds Metals Co., supra. The differentiation serves a legitimate purpose and it was reasonable for the legislature to believe that the classification promotes that purpose. This Court, therefore, must defer to the legislature’s classification of these two types of facilities. “(3) The Due Process Challenge “Article I, section 6 of the Alabama Constitution states, among other things, that no accused in a crim- inal prosecution shall be deprived of life, liberty, or property except by due process of law. This right has been extended to civil trials. Ross Neely Ex- press, Inc. v. Alabama Dep't. of Environmental Man- agement, 437 So.2d 82, 84 (Ala. 1983). In order to avoid violating the Due Process Clause of the Ale- 25a bama Constitution, a legislative classification must be reasonable and not arbitrary. White v. Associated Industries of Alabama, Inc., 373 So.2d 616, 617 (Ala. 1979). “The Base Fee is reasonable in function. It pro- vides some financial assurance against the risks associated with materials posing a permanent threat to health, safety and the environment. The burden imposed is not an excessively heavy one. While CWM’s right to maximize profits is certainly im- portant, it does not by any stretch of the imagina- tion outweigh the state’s interest in protecting the health and safety of its citizens and environment. Under any kind of ‘rational and reasonable’ analysis, therefore, the Base Fee is clearly valid. Il. Next we must consider whether the trial court erred in holding that the Cap provision of Act No. 90-326 is constitutional and is not preempted by federal statautes.® We find the reasoning and the conclusions of law by the trial judge to be persuasive on this issue. We therefore adopt Judge Phelp’s order of February 28, 1991, as to the issue of the Cap provision, as the decision of this Court: “THE CAP PROVISION “(1) The Commerce Clause Challlenge “The Court now turns to the question of whether the ‘Cap’ provision violates the Commerce Clause. This provision states that no commercia] hazardous waste disposal facility which takes in more than 5(1) the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901 et seq.; (2) the Toxic Substances Control Act (“TSCA”), 15 U.S.C. § 2601 et seq.; (3) the Comprehensive Environ- mental Response Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq. 26a 100,000 tons of hazardous waste annually may dis- pose of more waste in the year starting October 1, 1991 than it disposed of during the statutory bench- mark period, regardless of the origin of the waste. The position of CWM would allow it, and not the Alabama legislature, to determine what volume of hazardous waste will be buried permanently in the state. CWM insists that_the Cap provision, like the fees, is an impermissible legislative interference with its rights to dispose of and to bury in Alabama what- ever volume of such waste that it wishes. This Court disagrees, and concludes that the Cap provision is no more violative of the Commerce Clause than the Base Fee, and for many of the same reasons. “The Cap provision applies equally to in-state and out-of-state waste. Accordingly, the Pike v. Bruce Church balancing test must be utilized to assess its validity under the Commerce Clause. Like the Base Fee, the Court finds that the Cap provision regulates evenhandedly to effectuate a legitimate local interest. Tonnage restrictions which apply equally to all waste, regardless of origin, do not violate the Com- merce Clause. Wetzel County Solid Waste Authority v. West Va. Div. of Natural Resources, 401 S.E.2d 227 (W.Va. 1990). The state has a clear and legiti- mate interest in conserving its natural resources— the Seima chalk and the Eutaw acquifer—and in protecting the health and safety of its citizens. The state also has a legitimate interest in protecting the environment surrounding the Selma chalk and the Eutaw aquifer and in extending the life of the land- fill for the benefit of in-state and out-of-state waste generators. The Cap provision promotes this interest without discrimination by limiting the amount of waste that can be disposed of at Emelle during any 12-month period. See County of Washington v. Casella Waste Management, Inc., 1999 WL 208709 27a (N.D.N.Y. Dec. 6, 1990) (stating that local law prohibiting all out-of-county solid waste served a legitimate local purpose in protecting public health and safety as well as the environment, and noting that one of the legitimate effects of the local law might be to extend the useful life of safe landfills) ; and Bill Kettlewell Excavating, Ine. v. Michigan Dept. of Natural Resources, 732 F.Supp. 761 (E.D. Mich. 1990) (holding that statute requiring county approval for disposal of out-of-county solid waste served legitimate purpose of extending lives of the county’s landfills). The Cap provision also furthers Alabama’s legitimate interest in controlling health and safety risks by, in effect, regulating the amount of waste being transported on the state’s highways and te its landfills. The Court again notes that land- filling is the least desirable form of waste disposal as it peses a perpetual threat to the ground and sur- face waters in the landfill’s vicinity and to the sur- rounding environment. The Cap provision necessar- ily encourages the development of new technologies to supplement and minimize hazardous waste land- filling. ~- “Finally, any burden which the Cap provision might place on interstate commerce is speculative. The Cap limits the amount of waste in successive years only to that amount landfilled during the 1990- 91 benchmark period. . .. Thus, the Cap ereates no discriminatory burden on existing levels of commerce or on existing rates of waste generation and land- filling. The Cap provision permits increased volumes if such is warranted in accord with safety or to comply with State or federal regulations.* Thus, the * “The Court notes that the Cap provision contains the following language: ‘Provided, however, that the Governor or the Gov- ernor’s designee may allow disposal of hazardous wastes or hazardous substances in excess of the tonnage disposed of during 28a Cap provision merely furthers the policy that future growth in the amounts of such waste to be disposed of must be accompanied by growth in the develop- ment and use of safer and more environmentally sound methods of disposal. (See § 9 of Act 90-326). “(2) The Supremacy Clause Challenge “CWM alleges that the Cap provision comes into conflict with three federal statutes: The Resource Conservation and Recovery Act (‘RCRA’), 42 U.S.C.A. § 6901 et seq., which governs treatment and disposal of solid waste, the Toxic Substances Control Act (“TSCA’), 15 U.S.C.A. § 2602 et seq., which reg- ulates the disposal of toxic wastes such as PCBs, and the Comprehensive Environmental Response Compen- sation, and Liability Act (‘CERCLA’), 42 U.S.C.A. $9601 et seqg., which provides federal funding for cleanup of hazardous and toxic substances. CWM’s Emelle facility operates under permits issued in ac- cordance with these federal statutes, and CWM ar- gues that the Cap provision directly conflicts with either the provisions or the goals of all three. The Court disagrees, and will treat each statute in turn. “(a) The Cap Provision Does Not Conflict With, Frustrate, or Impede the Operation of RCRA. “RCRA, as amended in 1983, is a ‘cradle to grave’ reculatory program which sets standards for the generation, treatment, storage, and disposal of hazardous waste. RCRA is designed to promote sev- eral goals with regard to hazardous waste: 1) as- the benchmark period if such action is determined by the Gov- ernor or the Governor’s designee to be necessary to protect human health or the environment in the state, or to allow the State to comply with its obligations to assure disposal capacity pursuant to applicable state or federal law as determined by the Governor or his d [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_IA40385013_0185%3A02. Public record. Not legal advice.