Amicus Curiae Brief — Chemical Waste Management, Inc. v. Hunt

MOTION FILED

OCT 21 1991

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é

’ Z

‘ —

No. 91-471

IN THE

Supreme Court of the Gnited States

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, JR., COMMISSIONER OF THE

ALABAMA DEPARTMENT OF REVENUE,

Respondents.

On Petition for a Writ of Certiorari

to the Supreme Court of Alabama

MOTION OF THE

AMERICAN IRON AND STEEL INSTITUTE,

AMERICAN PETROLEUM INSTITUTE,

CHEMICAL MANUFACTURERS ASSOCIATION,

EDISON ELECTRIC INSTITUTE, ET AL.,

MOTOR VEHICLE MANUFACTURERS ASSOCIATION,

NATIONAL ASSOCIATION OF MANUFACTURERS, AND

NATIONAL ASSOCIATION OF METAL FINISHERS

FOR LEAVE TO FILE BRIEF AS AMICI CURIAE AND

BRIEF OF AMICI CURIAE IN SUPPORT OF PETITION

Tonl K. ALLEN*

Mary F. EDGAR

NORMAN L. RAVE, JR.

PIPER & MARBURY

1200 19th Street, N.W.

Washington, DC 20036

(202) 861-3900

Counsel for Amici Curiae

October 21, 1991 *Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

ZAI

IN THE

Supreme Court of the Cnited States

OCTOBER TERM, 1991

No. 91-471

CHEMICAL WASTE MANAGEMENT, INC.,

Petitioner,

Vv.

Guy HuNtT, GOVERNOR OF THE STATE OF ALABAMA:

ALABAMA DEPARTMENT OF REVENUE; and

JAMES M. SIZEMORE, JR., COMMISSIONER OF THE ALABAMA

DEPARTMENT OF REVENUE,

Respondents.

On Petition for a Writ of Certiorari

to the Supreme Court of Alabama

MOTION OF THE

AMERICAN IRON AND STEEL INSTITUTE,

AMERICAN PETROLEUM INSTITUTE,

CHEMICAL MANUFACTURERS ASSOCIATION,

EDISON ELECTRIC INSTITUTE, ET AL.,

MOTOR VEHICLE MANUFACTURERS ASSOCIATION,

NATIONAL ASSOCIATION OF MANUFACTURERS, AND

NATIONAL ASSOCIATION OF METAL FINISHERS

FOR LEAVE TO FILE BRIEF AS AMICI CURIAE

Pursuant to Rule 37.2 of the Rules of this Court, the

American Iron and Steel Institute (‘AISI’), American Pe-

troleum Institute (‘‘API’’), Chemical Manufacturers Asso-

ciation (“‘CMA’’), Edison Electric Institute, et al. (“EEI’’),

Motor Vehicle Manufacturers Association of the United

States, Inc. (“MVMA”), National Association of Manufac-

turers of the United States of America (“NAM”), and

National Association of Metal Finishers (“NAMF’’) move

for leave to file the accompanying brief as amici curiae

in support of the petition for a writ of certiorari. Amici

are individual utilities and trade associations representing

generators of hazardous wastes and polychlorinated bi-

phenyls whose access to Chemical Waste Management’s

Emelle, Alabama disposal facility has been restricted by

the actions of the State of Alabama that are the subject

of this case. Amici request leave to file the accompanying

brief to inform the Court of the significance of the re-

strictions at issue to a wide range of manufacturers and

other industries throughout the nation. Counsel for

Petitioner Chemical Waste Management, Inc. consented to

the filing of this brief; consent of counsel for Respondents

Governor Hunt, et al., was requested but refused. AISI,

API, CMA, EEI, MVMA, NAM, and NAMF therefore re-

quest leave to file the accompanying brief as amici curiae.

Respectfully submitted,

Toni K. ALLEN*

Mary F. EDGAR

NorMAN L. RAVE, JR.

PrrpER & MARBURY

1200 Nineteenth Street, N.W.

Washington, D.C. 20036

(202) 861-3900

Counsel for Amici Curiae

*Counsel of Record

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ...................:0ceeeeeeees

INTRODUCTION AND SUMMARY ..............:0::02:e000s

REASONS FOR GRANTING THE PETITION ...........

I. THE MARKET IN HAZARDOUS WASTE AND

PCB TREATMENT AND DISPOSAL SER-

VICES IS INTERSTATE IN NATURE ...........

A. Federal tion Of Hazardous Waste

And PCB tment And Disposal ........

1. Regulation of Hazardous Wastes Un-

der the Resource Conservation and

St I err

2. Regulation of PCBs Under the Toxic

Substances Control Act ..................0++

3. Treatment and Disposal of Hazardous

Wastes and PCBs from Site

rr

B. The Interstate Nature Of The Market For

Hazardous Waste And PCB Treatment

And Disposal Services ......................00+++.

Il. THIS COURT SHOULD GRANT CERTIORARI

BECAUSE ALABAMA’S ACTIONS HAVE UN-

LAWFULLY DISRUPTED INTERSTATE COM.

MERCE IN HAZARDOUS WASTE AND PCB

TREATMENT AND DISPOSAL SERVICES ....

A. The Market For Treatment And Disposal

Services Is And Must Remain Interstate

CEE

1. Replicating Every Needed Type of

Treatment and Disposal Facility in

Every State Is Economically

a neneees

2. Environmental! Suitable Sites for

Treatment and Facilities Are

an Unevenly Distributed Natural

Resource

Sica te tie te ete, ees AeaclivaalnnaliaaiinadtiadiiiaaallaaalaalinadiadliadliMiailiaadta diastase

WW

ih A |

12

12

13

ii

B. The Rationale Of The Alabama Supreme

Court Now Restricts Interstate Com-

merce And Would Seriously Distort In-

terstate Commerce In Hazardous Waste

And PCB Treatment And Disposal Ser-

vices If Adopted By Other States ..........

Ill. THiS COURT SHOULD GRANT CERTIORARI

BECAUSE RESTRICTING INTERSTATE COM-

MERCE IN TREATMENT AND DISPOSAL

SERVICES ADVERSELY AFFECTS INTER-

STATE COMMERCE GENERALLY ..............-..-

A. izing The Market For Hazardous

Waste PCB Treatment And Di

Services Would a arg Bigg nter-

state Commerce In A Wide Range Of

Goods And Services ............::csccsseeeeeeeeeees

B. The Alabama Supreme Court’s Rationale

Could Be Extended To Justify Discrimi-

natory Taxes On Other Commodities .....

7 ?

CONCLUSION. .........ccccccsecscesseceeseesccesccssessceseserenenneees

14

TABLE OF AUTHORITIES

CASES: Page(s)

American Trucking Associations v. Scheiner, 483

| RNR Re enone 16

Bacchus Imports, Ltd. v. Dias, 468 U.S. 263

CITED diciimentnenantuinianiniieinsadnidnebemenmetenenenenscens 16

City of Burbank v. Lockheed Air Terminal, Inc.,

ee DR 15

City of Philadelphia v. New Jersey, 437 U.S. 617

STII stalhathchetnindiiseenchichiditindiniideitindanteapdinbermidneieecnnes 14,16

Hughes v. Oklahoma, 441 U.S. 322 (1979) ............. 14

National Solid Wastes Management Association v.

Alabama Department of Environmental Man-

, 910 F.2d 713 (11th Cir. 1990), cert.

denied, 111 S. Ct. 2000 (199}) ..................222... 19

New Energy Co. v. Limbach, 486 U.S. 269

SETI dcisdinnsalialsasiieinneiteninaticealttasialiapssicsinibdiinsaiiiansiebadincsane 16

New England Power Co. v. New Hampshire, 455

Ss SE ITED sscisccushadinanteencattininabintiadinasbmeiaves 14

Sporhase v. Nebraska, 458 U.S. 941 (1982) ........... 14

West v. Kansas Natural Gas Co., 221 U.S. 229

GEIIIIET Caiiiialicaeinibiteiaauandnnigininninianidansiaiiatanncesmantianen 14

STATUTES:

Comprehensive Environmental Response,

Compensation, and Liability Act,

42 UB.C. $6 S601 66 0G. ...ccccccccesccesscesccceseoess )

ee i aisciiniitsictignistinciennnansenciicciniemanane 9

ee intetetenceninnimenee .)

Hazardous and Solid Waste Amendments of 1984,

Pub. L. No. 98-616, 98 Stat. 3221 (1984) ...... 6

Resource Conservation and Recovery Act,

ee ee I Oe OO tetneenictetcernecesensteres 6

A a I iar ccincrtnsiienieniatmainanpaeteniti 6

a ee I Sencetittnininisinnitaticieniddinmmmntines 6,7,9

Table of Authorities Continued

Page

Toxic Substances Control Act,

enn 8

REGULATIONS:

eee 6

i 8 nn 6

I pitta nintrctinicteniiciicnianniatecimntiniaunies 6

2 gg 7

OO Se 7

re ea a iccintnninrnineeniniiniinininnininne 8

Fe ID sicchisicrtniitnnstnintsitninnsensitientiines 8

Se ee a i ensnenenpnninnesanace 8

55 Fed. Reg. 22520 (June 1, 1990) ...............:000005 7,9

56 Fed. Reg. 7134 (Feb. 21, 1991) ........:cecescese+-+0 10

56 Fed. Reg. 41164 (Aug. 19, 1991) .........s:0000-++. 10

MISCELLANEOUS:

21 Env’t Rep. (BNA) 1179 (Oct. 19, 1990) ........... 16

22 Env’t Rep. (BNA) 347 (June 14, 1991) ............ 13

Inside E.P.A. Weekly Report, August 30, 1991 .... 15

National Petroleum News—1991 Fact Book, vol. 83,

BF ccanneensemmasicimntinteienene 18

National Solid Wastes Management Association,

“Interchange of Hazardous Waste

ment Services Among States” (1990) ............. 9,10

N.Y. Times, Sept. 8, 1991, § 4, at 5 ...................- 15

U.S. EPA Office of Solid Waste and Emergency

~~ nse, The Hazardous Waste System (June a

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1991

No. 91-471

CHEMICAL WASTE MANAGEMENT, INC.,

Petitioner,

v.

Guy Hunt, GoveRNor OF Tue State Or ALABAMA;

ALABAMA DEPARTMENT OF REVENUE; and

JAMES M. SIZEMORE, JR., COMMISSIONER OF THE

ALABAMA DEPARTMENT OF REVENUE,

Respondents.

On Petition for a Writ of Certiorari

to the Supreme Court of Alabama

BRIEF OF AMICI CURIAE

AMERICAN IRON AND STEEL INSTITUTE

AMERICAN PETROLEUM INSTITUTE,

CHEMICAL MANUFACTURERS ASSOCIATION,

EDISON ELECTRIC INSTITUTE, et ai.,

MOTOR VEHICLE MANUFACTURERS ASSOCIATION,

NATIONAL ASSOCIATION OF MANUFACTURERS, AND

NATIONAL ASSOCIATION OF METAL FINISHERS

IN SUPPORT OF PETITION FOR CERTIORARI

INTEREST OF AMICI CURIAE

Amici American Iron and Steel Institute (‘‘AISI’’),

American Petroleum Institute (““API’’), Chemical Manu-

facturers Association (““CMA”’), Motor Vehicle Manufac-

turers Association of the United States, Inc. (““MVMA”’),

National Association of Manufacturers of the United States

of America (“NAM”), and National Association of Metal

Finishers (“NAMF’’) are non-profit trade associations.

AISI’s members include 40 domestic companies that ac-

count for approximately 80 percent of the raw steel pro-

duction in the United States. API represents over 250

member companies engaged in all aspects of the petroleum

industry, including exploration, production, refining, trans-

portation and marketing. CMA’s 180 U.S. member com-

panies represent more than 90 percent of the production

capacity of basic industrial chemicals within this country.

MVMA’s members are domestic companies engaged in the

manufacture and sale of motor vehicles; they assemble 92

percent of the cars, trucks, and buses produced in the

United States and operate more than 300 manufacturing

facilities. NAM’s members include over 13,000 companies

and subsidiaries, employing 85 percent of all manufactur-

ing workers and producing over 80 percent of the nation’s

manufactured goods. More than 158,000 additional busi-

nesses are affiliated with NAM through its Associations

Council and National Industrial Council. NAMF represents

approximately. 950 metal finishing companies throughout

the United States.

Amici Edison Electric Institute, et al., represent all seg-

ments of the electric utility industry. The Edison Electric

Institute is the national association of investor-owned elec-

tric utility companies, the National Rural Electric Coop-

erative Association is the national association of rural

electric cooperatives, and the American Public Power As-

sociation is the national association of publicly-owned util-

ities. These associations are joined by 63 individual electric

utility companies (listed in the Appendix to this brief),

which generate and distribute electricity to communities

throughout the United States. Together, these individual

utilities and the members of the three associations serve

more than 95 percent of the nation’s consumers of elec-

tricity.

ite significant and successful efforts at waste re-

Pa and recycling, many of the members of the amici

=.

organizations generate hazardous wastes. Many have relied

upon the permitted landfill facility in Emelle, Alabama

(“the Emelle facility”) owned by Petitioner Chemical Waste

Management, Inc. for the secure disposal of hazardous

wastes generated both in their production processes and

in the cleanup of sites used in the past for waste disposal

and handling. Some of these companies in the past also

chose to gain an extra measure of environmental security

by sending nonhazardous wastes to the Emelle facility,

even though they were under no regulatory compulsion to

do so. The Alabama law challenged in this case has made

many member companies seek alternative disposal service

or, where no adequate alternative is available, has signif-

icantly increased their disposal costs.

Some members of the amici organizations, in particular

those representing the electric utility industry, also gen-

erate polychlorinated bipheny! (““PCB’’) wastes. PCBs have

been used for many years in transformers, capacitors and

other equipment required for transmission and distribution

of electric power, because of their dielectric (non-conduct-

ing) and fire-resistant properties. Before Alabama adopted

the challenged law, many of the amici shipped PCB wastes

to the Emelle facility fer disposal.

The outcome of this case will have a direct impact on

amici members as hazardous waste and PCB waste gen-

erators. Allowing this law to stand will have economic

consequences at all levels of the production chain and will

potentially have an economic and competitive effect on the

activities of the members of these associations.

INTRODUCTION AND SUMMARY

Amici support the constitutional challenges to Alabama

Act No. 90-326 presented in the Petition for a Writ of

Certiorari filed by Chemical Waste Management, Inc. This

brief focuses in particular on the serious impact on inter-

state commerce of the discriminatory $72 per ton “addi-

tional fee’’ imposed by the Alabama statute on wastes

generated outside Alabama and treated or disposed of at

the Emelle facility.

Alabama’s discriminatory fees for out-of-state use of

commercial hazardous waste treatment and disposal ser-

vices located in the state have severely disrupted interstate

commerce in these services. Not only is the Emelle facility

an integral part of the existing interstate market for these

services, but if this Court allows the decision of the Al-

abama Supreme Court to stand, other states almost cer-

tainly will follow Alabama’s lead and impose similar

restrictions on access to treatment and disposal services

within their borders by out-of-state waste generators.

Restrictive measures such as those adopted by Alabama

cannot be justified by any purported environmental risk

nor as a matter of purely local interest. Hazardous wastes

or PCB wastes generated in Alabama are chemically and

physically indistinguishable from those generated in other

states. Alabama’s claim that wastes generated in other

states are produced solely for the benefit of the citizens

of those states also ignores the interdependence of the

states in the national economy. Not only do numerous out-

of-state waste generators produce goods that are used by

and for the benefit of Alabama residents, but Alabama

generators avail themselves of waste treatment and dis-

posal services in other states. Thus, a Balkanized market

for hazardous waste and PCB treatment and disposal ser-

vices is just as inimical to the Commerce Clause as would

be a Balkanized market for coal, natural gas, agricultural

products, or any other natural or manufactured product.

Moreover, because hazardous waste and PCB treatment

and disposal services are today integral to the manufac-

turing processes that generate these wastes, disruption of

interstate commerce in these services directly affects in-

terstate commerce in a wide range of other commodities.

One of the major achievements of the environmental move-

ment over the past few decades has been the recognition,

on the part of industry, government, and society at large,

that the minimization, management, and secure disposal

of industrial wastes is as much a part of the manufacturing

process as is obtaining fuel, raw materials, and labor. In-

dustrial wastes—particularly hazardous wastes and PCBs—

cannot be randomly dumped or buried. Instead, proper

waste treatment and disposal services must be provided

or purchased as an integral component of the overall man-

ufacturing process.

A sophisticated market, involving significant interstate

exchanges, has developed to meet the demand for these

services. Economic and environmental factors combine to

make this market interstate in nature. To site in each

state each of the numerous types of facilities required to

provide the treatment and disposal services necessary to-

day would be economically inefficient and impractical. In

addition, due to geology and other environmental limita-

tions, the 50 states are not equally suited for the siting

of each type of facility needed by U.S. industry.

To avoid the existing and potential economic disruption

that flows from the Alabama Supreme Court’s decision,

amici, representing a wide array of U.S. industry, re-

spectfully urge this Court to grant the petition and reverse

the decision of the Alabama Supreme Court.

REASONS FOR GRANTING THE PETITION

I. THE MARKET IN HAZARDOUS WASTE AND PCB

TREATMENT AND DISPOSAL SERVICES IS INTER-

STATE IN NATURE.

As a practical matter, stringent federal regulatory

schemes promulgated to protect against the potential risks

associated with the treatment and disposal of hazardous

wastes and PCBs influence the character of the market

for waste treatment and disposal services. These schemes

dictate that U.S. industry employ a wide variety of so-

phisticated technologies, which for economic and environ-

mental reasons cannot all be provided within each of the

50 states. Therefore, the market today for hazardous waste

and PCB treatment and disposal services, in which the

Emelle facility is a vital element, is an interstate market.

A. Federal Regulation Of Hazardous Waste And PCB

Treatment And Disposal.

1. Regulation of Hazardous Wastes Under the Re-

source Conservation and Recovery Act.

The treatment and disposal of discarded industrial ma-

terials that have been classified as ‘hazardous waste’’! is

regulated by the United States Environmental Protection

Agency (“EPA’’) under the Resource Conservation and

Recovery Act (“RCRA’’), 42 U.S.C. 8§ 6901 et seq. Under

Subtitle C of RCRA, EPA has promulgated a “cradle to

grave” system that regulates the transportation, storage,

treatment, and disposal of hazardous waste. Specifically,

subject to a few narrow regulatory exceptions, hazardous

wastes may be stored on-site in unpermitted facilities for

only a limited period of time; may be transported only by

registered hazardous waste transporters; and may be

stored, treated and disposed of only at permitted facilities.

To obtain a RCRA permit, a facility must meet stringent

siting, design, and operating requirements.’

In addition to the stringent baseline requirements of

RCRA Subtitle C, another vital factor influencing the mar-

ket for hazardous waste treatment and disposal services

is the RCRA Land Disposal Restrictions program. Pur-

suant to the Hazardous and Solid Waste Amendments of

1984,’ EPA has issued regulations requiring that, before

land disposal, most hazardous wastes must be treated to

a level, or by a method, prescribed by EPA that reduces

‘A hazardous waste is any solid waste that either (1) has been spe-

cifically listed by rule as a hazardous waste, or (2) exhibits one of

several characteristics of hazardous waste that have been defined by

rule. See 42 U.S.C. § 6921; 40 C.F.R. Part 261.

* For example, under EPA's regulations, a hazardous waste landfill

must employ technological measures aimed at protection of groundwater

resources, including synthetic membrane liners, leachate collection sys-

a groundwater monitoring networks. See 40 C.F.R. §§ 264.97,

301.

*Pub. L. No. 98-616, § 201, 98 Stat. 3221, 3226-33 (1984) (codified

at 42 U.S.C. § 6924).

the toxicity or mobility of hazardous constituents. See 40

C.F.R. Part 268; 42 U.S.C. §§ 6924(d), (e), (g) & (m). EPA

has promulgated its RCRA hazardous waste treatment

standards based upon the Best Demonstrated Available

Technology for each waste. See, e.g., 55 Fed. Reg. 22520,

22524-25 (June 1, 1991).

Two important results follow from this waste treatment

program. First, although the amount, toxicity or mobility

of hazardous wastes are reduced by the prescribed treat-

ment, virtually every treatment process ultimately pro-

duces some residue that must—and legally may—then be

land disposed in a facility with proper authorization under

Subtitle C of RCRA. For example, many hazardous wastes

must be treated by high-temperature incineration; the ash

that results is almost always itself classified as a hazardous

waste. Therefore, the need for permitted landfill facilities,

such as the Emelle facility, continues. Second, because of

the wide variety of hazardous wastes produced in this

country and EPA’s efforts to identify the best treatment

technology for each waste, a host of different technologies

are necessary today to meet the needs of U.S. industry.‘

Treatment and disposal facilities with the requisite op-

erating authorization under Subtitle C of RCRA are scarce.

There are, for example, only 20 commercial landfills in the

country that can lawfully dispose of hazardous wastes and

even fewer permitted commercial hazardous waste incin-

erators. Thus, waste generators in many states have no

choice but to use treatment and disposal services in other

states. Because the Emelle facility is the largest permitted

landfill in the country, and because its hydrogeological set-

ting is particularly well-suited for landfill operations, this

facility has been widely used by generators seeking to

ensure that their hazardous wastes are securely and law-

fully disposed.

‘The RCRA hazardous treatment regulations, which are subject to

revision and expansion, are currently based on 29 different technologies.

See 40 C.F.R. § 268.42, Table 1.

2. Regulation of PCBs Under the Toxic Sub-

stances Control Act.

Polychlorinated biphenyls (“‘PCBs’’), while not classified

as hazardous wastes under RCRA, also require specialized

treatment and disposal facilities. PCBs were once used for

a variety of purposes, but most extensively in transformers

and other electrical equipment. The manufacture of PCBs

was essentially banned by Congress as of 1978, and the

phaseout and disposal of PCBs in use at that time is reg-

ulated by EPA under section 6(e) of the Toxic Substances

Control Act (““TSCA’’), 15 U.S.C. § 2605(e); see also 40

C.F.R. Part 761.

EPA’s TSCA regulations require that PCBs and articles

containing PCBs above certain concentrations (such as

drained transformer carcasses or soils in which PCBs have

been spilled) be disposed of in incinerators or landfills ap-

proved by EPA. 40 C.F.R. §§ 761.60-761.79. Nationally,

only seven incinerators and eight landfills, including the

Emelle facility, are approved for disposal of electrical

equipment that contained PCBs or other PCB wastes. Of

the eight landfills, only two are east of the Rocky Moun-

tains.° Many of the amici, particularly the electric utility

industry, are presently facing a severe shortage of PCB

disposal capacity, a problem exacerbated by an EPA reg-

ulation that requires PCB wastes to be disposed of within

one year after being placed into storage for disposal.*

3. Treatment and Disposal of Hazardous Wastes

and PCBs from Site Cleanups.

Another element that has created a need for an inter-

state market in waste treatment and disposal services is

the need to treat and dispose of materials removed during

* The EPA-approved PCB landfills are in Alabama, New York, Cal-

ifornia, Idaho, Nevada, Oregon and Utah (two facilities).

: 40 C.F.R. § 761.65(a). However conscientiously these generators take

their regulatory obligations, they risk substantial penalties for noncom-

= if disposal capacity shortages force them to violate the one-year

ine.

cleanups of sites at which hazardous wastes or PCBs were

handled or disposed of in the past. In 1980, Congress

reacted to the problems caused by certain past waste han-

dling and disposal practices by enacting the Comprehensive

Environmental Response, Compensation, and Liability Act

(known as “CERCLA” or “Superfund”’).’ This statute cre-

ated a mechanism by which EPA can either compel the

cleanup of sites that pose a threat to the environment or

clean up those sites itself. 42 U.S.C. §§ 9604, 9606. In

addition, RCRA requires an applicant for a facility permit

to undertake corrective action with regard to any release

of hazardous wastes or constituents from existing waste

management units at the facility. 42 U.S.C. § 6924(u).

Many materials removed from sites being remediated

voluntarily or under CERCLA or RCRA must be treated

and disposed of in full compliance with EPA’s RCRA and

TSCA rules. While some of these wastes are managed on-

site, many are sent to commercial treatment and disposal

facilities. These wastes impose a substantial additional bur-

den on the nation’s limited hazardous waste and PCB

treatment and disposal capacity.”

B. The Interstate Nature Of The Market For Haz-

ardous Waste And PCB Treatment And Disposal

Services.

A substantial interstate market for the treatment and

disposal of hazardous wastes and PCBs currently exists.

Approximately 250 million tons of hazardous wastes are

generated annually in the United States.* In 1987, before

the RCRA treatment program was fully effective, approx-

imately 3.7 million tons were shipped between states for

7 Pub. L. No. 96-510, 94 Stat. 2767 (1980) (codified as amended at

42 U.S.C. §§ 9601 et seq.).

* See, e.g., 55 Fed. Reg. 22520, 22631-50 (June 1, 1990) (variance

from RCRA treatment program based on lack of available treatment

capacity for certain wastes).

* National Solid Wastes Management Association, ‘Interchange of

Hazardous Waste Management Services Among States,” at 4 (1990)

(““NSWMA Study”’).

10

treatment and disposal.'° The need for specialized services

to comply with the RCRA treatment program, as well as

new regulations limiting the burning of certain hazardous

wastes in industrial boilers and furnaces," has likely in-

creased the volume of wastes requiring interstate access

to treatment and disposal services.

A recent study revealed that, in 1987, an average state

sent hazardous wastes to 19 states and received hazardous

wastes from 19 states. NSWMA Study, supra note 9, at

8. Industries in an average state utilized 12 different types

of waste treatment or disposal services located in other

states. Jd. The study also reveals that even Alabama, al-

though it is a net importer of hazardous wastes (receiving

waste shipments from 37 states), sends significant amounts

of hazardous wastes out-of-state. Jd. at 22. Specifically, in

1987, Alabama generators sent 52,000 tons of waste to

treatment and disposal facilities in 23 other states. Thus,

Alabama industries are taking advantage of the interstate

market in treatment and disposal services at the same time

Alabama is restricting the access of out-of-state generators

to one of the most important elements of that market.

Like these Alabama industries, many amici member

companies are substantial consumers of interstate hazard-

ous waste and PCB treatment and disposal services. For

example, EPA’s treatment standard for electric are fur-

nace dust (a waste produced by the steel industry) is based

on high temperature metals recovery. See 56 Fed. Reg.

41164 (Aug. 19, 1991). This technology is available at only

a handful of facilities. Further, many of the major steel-

producing states, such as Illinois, West Virginia, and Mich-

igan, contain no facility capable of treating a number of

” Id. at 15.

"See 56 Fed. Reg. 7134 (Feb. 21, 1991). This rule eliminates an

exemption from EPA’s RCRA regulations that had allowed certain

hazardous wastes to be burned for energy recovery in boilers and in-

dustrial furnaces. Waste generators who have relied on this exemption

must now either obtain permits (an arduous and costly procedure) or

send their wastes to permitted facilities for treatment and disposal.

a ial. nat

11

the hazardous wastes produced by steel plants. Therefore,

steel producers in most states must rely on out-of-state

treatment and disposal services.

Similarly, the petroleum refining industry requires ac-

cess to hazardous waste treatment or disposal services,

particularly incineration, that are available in only a limited

number of states."* For example, California, which has ap-

proximately 30 oil refineries, has no commercial hazardous

waste incineration capacity for refinery wastes. Moreover,

the siting of any new hazardous waste incinerator in Cal-

ifornia is very difficult today because of stringent new

restrictions on air emissions within the Los Angeles basin,

and other obstacles under state law to facility siting

throughout the state. Therefore, refinery wastes generated

in California, as well as in a number of other states, typ-

ically must be shipped between states."

In addition to the interstate market for commercial

treatment and disposal services, a number of companies

that operate their own hazardous waste treatment and

disposal facilities have centralized the locations of tech-

nologies they must employ to comply with the RCRA treat-

ment p 4 Sending all wastes of a certain type to

“In 1987, there were only 14 commercial hazardous waste inciner-

ators in the United States. U.S. EPA Office of Solid Waste and Emer-

gency Response, The Hazardous Waste System at A-2 (June 1987). Very

few new facilities have begun operation since that time.

8 Information compiled by amicus API in 1990 indicates that at least

20 states containing refineries have no commercial facilities capable of

: faciliti

“ Several steel companies, for example, have their own facilities ca-

pable of treating and disposing of hazardous wastes from plants in

ee 1 oe Sane cenpany. One company bee &

recovery plant capable of processing tin plating wastes from a sister

plant in another state. Another has an acid regeneration plant that

processes waste acids from a sister plant in another state. In addition,

several steel companies, each with plants in several states, are faced

with limited commercial facilities that can perform high temperature

metals recovery on electric arc furnace dust and are now considering

building centralized plants to treat their own wastes.

12

one location is much more economical for these companies

than building duplicative treatment or disposal facilities at

each plant that generates a particular type of waste. This

centralization often necessitates the interstate shipment of

hazardous wastes between intracompany facilities."®

Il. THIS COURT SHOULD GRANT CERTIORARI BE-

CAUSE ALABAMA’S ACTIONS HAVE UNLAWFULLY

DISRUPTED INTERSTATE COMMERCE IN HAZARD-

OUS WASTE AND PCB TREATMENT AND DISPOSAL

SERVICES.

A. The Market For Treatment And Disposal Services

Is And Must Remain Interstate In Nature.

Treatment and disposal services for hazardous wastes

and PCBs today are as integral a component of manufac-

turing processes as supplies of energy or raw materials.

Just as the U.S. economy could not run efficiently if man-

ufacturers had to obtain all their raw materials from within

their home states, so the U.S. economy cannot rely on a

Balkanized system of hazardous waste and PCB treatment

and disposal services. The market for these services is

necessarily interstate because of the manifest inefficiency

in replicating each necessary technology in every state and

because states vary substantially in their suitability as lo-

cations for particular types of waste management facilities.

1. Replicating Every Needed Type of Treatment and

Disposal Facility in Every State Is Economically

Infeasible.

As discussed above, the RCRA hazardous waste treat-

ment program forces industry to employ numerous differ-

ent treatment and disposal technologies. This multiplicity

of technologies is a direct result of the widely varying

universe of hazardous wastes and EPA’s regulatory iden-

tification for each waste of the technology that minimizes

the toxicity or mobility of residues that must be land dis-

‘* While the Alabama law challenged in this proceeding does not affect

these transfers, other restrictions on interstate waste transfers could.

See infra p. 16.

13

posed. Some of these technologies are used for a relatively

small volume of wastes.

The quantity of wastes that must be treated or disposed

of at any particular type of facility is generally insufficient

to justify the high capital cost of constructing these so-

phisticated facilities in every state. Moreover, as in other

industries, economies of scale make it inefficient to con-

struct multiple smaller units. Just as requiring a manu-

facturer to obtain all of its fuel, semiconductors, steel parts,

or other components strictly from in-state sources —

i isrupt interstate commerce, so requiring -

oe a ee all of its hazardous waste and PCB

treatment and disposal services from in-state sources would

seriously disrupt interstate commerce.”*

2. Environmentally Suitable Sites For Treatment And

Disposal Facilities Are An Unevenly Distributed

Natural Resource.

A second reason that the market for hazardous waste

and PCB treatment and disposal services is, and must be,

national in scope is that states vary significantly in their

suitability for siting the necessary facilities. For example,

landfills generally are sited in areas that present the min-

imum possible chance for hazardous constituents to mi-

grate into groundwater. The location of the Emelle facility

is particularly well suited for hazardous waste landfill op-

erations because it lies over hundreds of feet of highly

impermeable chalk that would protect the underlying

groundwater aquifer in the event that RCRA protective

systems were to fail.'7 In contrast, most of Florida is un-

* As a practical matter, in addition to economic and environmental

constraints, the time required to obtain the necessary permits to con-

struct new hazardous waste management facilities, substantial public

opposition to their siting, and even some state-wide moratoria on their

siting, such as that recently adopted by Texas (see 22 Env't Rep. (BNA)

347 (June 14, 1991)), make it virtually impossible to duplicate all treat-

ment and disposal options within each state in the foreseeable future.

* Environmental considerations also influence waste generators’

choices among alternative treatment and disposal services, because of

their desire to avoid future liability under CERCLA.

14

suitable for a hazardous waste landfill because the under-

lying rock is highly permeable and the water table is high.

Similarly, deep well injection (another hazardous waste dis-

posal technology) requires specific geological conditions that

— in only a few areas, while restrictions on air

ons increases imposed by the 1 i

Amendments effectively limit + Bos toa og = a

ardous waste incinerators can be sited.

Environmentally suitable locations for hazardous waste

and PCB treatment and disposal facilities, therefore, are

valuable natural resources just like concentrations of coal,

iron or natural gas. This Court has repeatedly rejected

attempts by states to reserve their natural resources for

in-state users:

If the states have such power, a singular situa-

tion might result. Pennsylvania might oy

coal, the Northwest its timber, the mining states

their minerals. ... If one state has it, all states

have it; embargo may be retaliated by embargo,

and cummerce will be halted at state lines.

West v. Kansas Natural Gas Co., 221 US. 229, 255 ~

(1911)."* Alabama's attempt to reserve its valuable waste

oe for in-state users should similarly be in-

vali q

B. The Rationale Of The Alabama Supreme Court

Now Restricts Interstate Gmanees Aad Would

Seriously Distort Interstate Commerce In Hazard-

ous Waste And PCB Treatment And Disposal Ser-

vices If Adopted By Other States.

The Alabama law at issue in this case has caused many

of the amici members to incur significantly higher costs

” See aso, ¢.g., Sporhase v. Nebraska, 458 U.S. 941 (1982) (unla

restriction on export of groundwater), New England Power Co v. ros

Hampshire, 455 U.S. 331 (1982) (unlawful restriction on export of hy-

droelectric power); Hughes v. Okiahoma, 441 U.S. 322 (1979) (unlawful

py ate export of minnows); City of Philadelphia v. New Jersey,

a 617, 627 (1978) (unlawful reservation of solid waste landfill

th iti

:

’

:

15

or to reduce their hazardous waste and PCB shipments to

the Emelle facility and find other options for disposal. The

resulting decline in shipments to Emelle has increased the

demand for landfill capacity in other states and exacer-

bated the pre-existing shortage of available disposal facil-

ities. Generators of PCB wastes in particular, such as the

electric utility and steel industries, are facing an extreme

shortage of capacity.

Even more serious than the effects of Alabama's re-

strictions on access to the Emelle facility will be the con-

when other states inevitably follow Alabama’s

jead.** A number of other states have already adopted,”

or are on the verge of adopting,*' measures to restrict

access by out-of-state generators to treatment and disposal

services within their borders. If the decision below is not

reversed, these states and others will likely emulate Al-

abama and impose discriminatory fees or other restrictions

that effectively limit or ban out-of-state wastes.” In that

event, many companies either will have no access to the

hazardous waste treatment and disposal services necessary

to meet their obligations under RCRA and TSCA or will

have to pay exhorbitant fees for these services, placing

them at a competitive disadvantage in relation to com-

panies in states that have such facilities.

* See City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624,

639 (1973) (considering cumulative impact of others following challenged

action in determining federal preemption claim).

” Considerable litigation has resulted from these actions. See, ¢.g.,

Chemical Waste Management’ Inc.’s Petition for Certiorari at 15-17 &

n.8.

* Legislation is currently pending in at least eight states (Arizona,

Colorado, Kentucky, Louisiana, Nevada, New Jersey, Ohio, and South

Carolina) to restrict the ability of in-state facilities to accept hazardous

wastes generated out-of-state.

2 See, e.g., Inside E.P.A. Weekly Report, August 30, 1991, at 12

(discussing recommendation of National Governors’ Conference that

states should be authorized to ban imports of out-of-state wastes), N.Y.

Times, Sep. 8, 1991, § 4, at 5 (New York, Louisiana, and Alabama

discouraging hazardous waste imports through caps and high taxes.)

16

Even the intra-company waste transfers described above,

supra p.12, while not covered by the Alabama law, will

likely be affected. For example, New York has already

begun imposing restrictions on receipt of out-of-state

wastes through individual facility permits, which are ap-

plicable to both commercial and in-house facilities.”

Restrictions on access to permitted treatment and dis-

posal facilities also drive up the costs of remediating sites,

thereby discouraging voluntary cleanup efforts, decreasing

the cost effectiveness of expenditures from the Superfund,

and increasing the potential liabilities of U.S. industry and

governmental units under CERCLA and RCRA. These in-

creased costs not only will ultimately be reflected in the

cost of affected manufacturers’ products, but also will likely

produce a serious environmental cost by slowing the pace

of site cleanups.

Accordingly, the challenged Alabama law has serious

national ramifications that require intervention by this

Court. The in-state favoritism and economic Balkanization

fostered by the Alabama Supreme Court decision is pre-

cisely the evil at which the Commerce Clause is aimed.”

Ill. THIS COURT SHOULD GRANT CERTIORARI BE-

CAUSE RESTRICTING INTERSTATE COMMERCE IN

TREATMENT AND DISPOSAL SERVICES AD-

Menor ry AFFECTS INTERSTATE COMMERCE GEN-

If not reversed, the Alabama Supreme Court decision

will likely have deleterious effects on interstate commerce

extending well beyond the effects on the interstate market

* See 21 Env’t Rep. (BNA) 1179 (Oct. 19, 1990).

* See, e.g., New Energy Co. v. Limbach, 486 U.S. 269 (1988) (unlawful

tax credit favoring ethanol manufactured in-state); American Trucking

Ass'ns v. Scheiner, 483 U.S. 266, 280-81 (1987) (uniawful tax on out-

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

yey ‘New Jersey an ol 617, 626-27 : aad ton an

’ ’ S. ‘ 1

out-of-state solid waste). wi cr oon iauscian

doi ih AA

17

in hazardous waste and PCB treatment and disposal ser-

vices described above. First, because these services are an

essential component of industrial processes, restrictions on

their use grant substantial competitive advantages to in-

dustries located in states with adequate treatment and

disposal capacity while disadvantaging industries located

in states without such capacity. Second, the rationale used

by the Alabama Supreme Court to justify its decision could

be extended to justify taxes on out-of-state consumption

of other commodities, particularly scarce natural resources.

A. Balkanizing The Market For Hazardous Waste And

PCB Treatment And Disposal Services Would Se-

riously Disrupt Interstate Cemmerce In A Wide

Range Of Goods And Services.

Because hazardous waste and PCB treatment and dis-

posal services are an integral component of most industrial

and manufacturing processes, disruption of the interstate

market in such services has ramifications beyond the waste

management industry. The resulting increased cost or re-

stricted supply of these services ultimately will increase

“—ghe costs of products manufactured in states that lack

adequate in-state treatment and disposal capacity. Indus-

tries in these states will have great difficulty maintaining

competitiveness and some could even be forced to shut-

down because of a lack of access, on an economical basis,

to this necessary service. At the same time, industries in

states that have treatment and disposal facilities adequate

to meet in-state needs would be economically favored over

out-of-state competitors through preferential access to this

vital resource.

Alabama's effort to portray its law as a matter of purely

local concern ignores the interdependence of the national

economy and the integral relation of hazardous waste and

PCB treatment and disposal services to that economy.

Contrary to Alabama’s view, the wastes sent to the Emelle

J

18

facility from other states are not produced solely for the

benefit of out-of-state residents.

Some of those wastes are generated either in the man-

ufacture of final products used by Alabama citizens or in

the production of intermediate products used by Alabama

industries. For example, a metal plating company located

in Georgia receives parts from a company in Alabama,

plates the parts in Georgia, and returns them to the Al-

abama company for further processing and distribution in

interstate commerce. In the plating process, the Georgia

company generates hazardous wastes.”* Before the chal-

lenged law took effect, the company disposed of these

wastes at the Emelle facility because no commercial haz-

ardous waste landfills exist within Georgia. Faced with the

discriminatory fee, the plating company diverted its wastes

to a facility in South Carolina. If South Carolina and other

states that contain facilities suitable for disposal of this

waste follow Alabama’s lead, the Georgia plating company

will not be able to compete effectively with plating op-

erations within those states. Similarly, many other indus-

tries may find it impossible or prohibitively expensive to

operate if access to vital waste treatment and disposal

services is further restricted by other states.

B. The Alabama Supreme Court’s Rationale Could Be

Extended To Justify Discriminatory Taxes On

Other Commodities.

The principal rationale adopted by the Alabama Supreme

Court—that Alabama residents should be compensated for

risks posed by wastes from other states—could be used to

* Ironically, a company located in Alabama manufactured half of the

PCBs ever produced in the United States. Chemical Waste Management,

Ine. v. Alabama Dep't of Revenue, Civil Action No. CV 90-1098 (Cir.

Ct. Montgomery Co., Ala. 1990), Tr. 167 (testimony of Roger Henson).

Nevertheless, Alabama is now attempting to limit the disposal within

Alabama of those very PCBs.

* As another example, Alabama residents consume billions of gallons

of petroleum products (e.g., gasoline and fuel oil) each year, almost all

of which comes from processes that generate hazardous wastes outside

the state. See National Petroleum News—1991 Fact Book, vol. 83, no.

7.

nl Re

19

justify similarly disruptive taxes on other commodities. The

Alabama Supreme Court justified the discriminatory fee

on the ground that it protects Alabama citizens from the

environmental effects of the disposal of wastes generated

in other states. This parochial attitude ignores the plain

fact—confirmed by the Alabama trial court—that hazardous

wastes and PCB wastes generated outside Alabama are

chemically and physically indistinguishable from those gen-

erated within Alabama and, therefore, pose no greater

risk.27 Even more unfairly, it disregards the costs, includ-

ing environmental costs, associated with goods produced

in other states and consumed by the citizens of Alabama.

For example, in producing goods for an Alabama con-

sumer, the Georgia plating company described above pro-

duces air emissions and water discharges that must be

“borne” by Georgia residents. Indeed, most industrial

processes produce air or water emissions, which under the

logic of the Alabama Supreme Court could be said to “‘bur-

den” local residents. Yet, their products typically are

shipped throughout the nation to the advantage of all.

If the decision of the Alabama Supreme Court is not

reversed, its rationale will allow states to tax products

shipped out of state to compensate for these burdens. For

example, states that produce coal, iron, natural gas, and

other scarce raw materials could tax out-of-state shipments

to compensate in-state residents for the environmental

costs of extracting these materials. In-state users of these

commodities would then gain a substantial competitive ad-

vantage over out-of-state users. Clearly, these taxes would

have a deleterious effect on interstate commerce, yet they

follow directly from the rationale adopted by the Alabama

Supreme Court. To avoid these consequences, this Court

27 Chemical Waste Management, Inc. v. Alabama Dep't of Revenue,

Civil Action No. CV 90-1098 (Cir. Ct. Montgomery Co., Ala. 1990),

reprinted in Chemical Waste Management Petition for Certiorari at

86a; accord, National Solid Wastes Management Ass'n v. Alabama Dep t

of Envtl. Management, 910 F.2d 713, 720 (11th Cir. 1990), cert. denied,

111 S.Ct. 2000 (1991).

20

should grant certiorari to review and reverse the decision

of the Alabama Supreme Court.

CONCLUSION

For the reasons stated above, Chemical Waste Manage-

ment, Inc.’s Petition for a Writ of Certiorari should be

granted.

Respectfully submitted,

Toni K. ALLEN*

Mary F. EDGAR

NORMAN L. RAVE, JR.

PIPER & MARBURY

1206 Nineteenth Street, NW

Washington, DC 20036

(202) 861-3900

Counsel for Amici Curiae

*Counsel of Record

October 21, 1991

APPENDIX

LIST OF ELECTRIC UTILITY AMICI CURIAE

American Electric Power Service Corporation

Appalachian Power Company

Atlantic City Electric Company

Baltimore Gas & Electric Company

Boston Edison Company

Carolina Power & Light Company

Centerior Energy Corporation

Central Hudson Gas & Electric Corporation

Central Illinois Light Company

Central Illinois Public Service Company

Cremeans ie Columbus Southern Power Company

Commonwealth Edison Company

tn

so

oy A

~

‘

:

>

oe" ey

‘y

ke

‘

ays

: .

| Consolidated Edison Company of New York, Inc.

Consumers Power Company

) Dayton Power & Light Company

| Delmarva Power & Light Company

Duke Power Company

Duquesne Light Company

Florida Power & Light Company

Holyoke Water Power Company ;

Houston Lighting & Power Company

Illinois Power Company

| Indiana Michigan Power Company

= lle i

2a

Indianapolis Power & Light Company

Iowa Power & Light Company

Iowa Public Service Company

Jersey Central Power & Light Company

Kansas City Power & Light Company

Kentucky Power Company

Madison Gas & Electric Company

Minnesota Power & Light Company

Monongahela Power Company

Montaup Electric Company

New England Electric System

Niagara Mohawk Power Corporation

Northeast Utilities Service Company

Ohio Edison Company

Ohio Power Company

Ohio Valley Electric Corporation

Oklahoma Gas & Electric Company

Pacific Gas & Electric Company

Pacificorp dba Pacific Power & Light Company and

Utah Power & Light

Pennsylvania Power & Light Company

Philadelphia Electric Company

Potomac Electric Power Company

Public Service Company of Indiana, Inc.

Public Service Electric & Gas Company

Tampa Electric Company

Texas Utilities Electric Company

The Cleveland Electric Illuminating Company

3a

The Connecticut Light & Power Company

The Detroit Edison Company

The Potomac Edison Company

Toledo Edison Company

Union Electric Company

Virginia Electric & Power Company

West Penn Power Company

Western Massachusetts Electric Company

Wisconsin Electric Power Company

Wisconsin Power & Light Company

Wisconsin Public Service Corporation