Respondents Brief — Chemical Waste Management, Inc. v. Hunt

Supreme Court brief1992

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Text

ee” _ GUY HUNT, GOVERNOR OF THE STATE OF ALABAMA;

2. Ae ALABAMA DEPARTMENT OF REVENUE; and

: James M. SizeMorsz, Jk., COMMISSIONER OF THE

ae ALABAMA DEPARTMENT OF REVENUE,

Respondents.

On Writ of Certiorari to the

Supreme Court of Alabama

BRIEF FOR THE RESPONDENTS

Wi1iAM D. COLEMAN *

Jim B. GRANT, JR.

QUESTIONS PRESENTED

1. Whether Alabama may control the importation into

the State of hazardous waste which endangers the health

and safety of the State’s citizens and the integrity of its

environment.

2. Where the health and safety of Alabama’s citizens,

and its environment, are placed at risk by the landfilling

of hazardous waste at Petitioner’s commercial facility

(which receives 85% to 90% of its hazardous waste from

out-of-state), does the Commerce Clause prohibit Ala-

bama from limiting the health, safety and environmental

risks by imposing a disincentive in the form of a $72

per ton disposal fee upon imported hazardous waste while

providing for the regulated disposal within the State of

the State’s own such waste.

(i)

RULE 29.1 STATEMENT

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

the caption.

TABLE OF CONTENTS

GUmotIONS PRESENTED ....................................s00000-

STATEMENT OF THE CASE ................................20.200--

A. The Substances Permanently Buried at Peti-

tioner’s Emelle, Alabama Facility Pose Serious

Threats to Human Health and the Environ-

B. Emelle Is the Largest Hazardous Waste Landfill

in the Country, and the Volumes of Waste Land-

filled There Substantially Increased in the Years

Preceding Act No. 90-326 ............0...00.000.ee |

C. While Hazardous Waste Is Regulated, the Regu-

lations Do Not Assure That Permanent Burial

of Hazardous Waste Is Safe .....................0..........

D. Current Financial Assurance Requirements Are

Inadequate To Protect Against the Perpetual

ARGUMENT

Alabama’s Facially Discriminatory Fee Structure,

Which Imposes A $72 Per Ton Additional Fee On

Out-Of-State Waste, Does Not Violate The Com-

merce Clause _...... Ne. coemeaces

I. Alabama Has Legitimate Concerns About The

Landfilling Of Large Volumes Of Imported

Hazardous Waste

Il. Philadelphia v. New Jersey Is Not Controlling

In The Context Of Real And Substantial Health,

Safety And Environmental Risks _..

(iii)

III.

TABLE OF CONTENTS—Continued

Alabama's Differential Fee Structure, As A

Measure To Control The Movement Into The

State Of Dangerous Waste Materials, Is A Valid

Exercise Of The State’s Police Power Under

vironmental Dangers Documented in This

Case, Alabama May Control the Movement

of Hazardous Waste Into the State, While

Providing for Regulated Disposal Within the

State of Its Own Waste ..........00........ ale

B. The Quarantine Cases Were Decided on

Principles Which Form the Basis for This

Court’s More Recent Decisions, and Are In-

distinguishable From This Case ..................

C. Petitioner’s “Different Threat” Theory and

the Solicitor General’s “Comparable Treat-

ment Rule” Are Based on an Erroneous In-

terpretation of This Court’s Decision in

ERE Ae ee iiemeeele

D. A Standard of General Application, Based on

the Construction of the Commerce Clause

Argued by Petitioner and the Solicitor Gen-

eral, Would Invalidate Scores of Existing

State Health, Safety, Environmental and

Quarantine Laws and Regulations, Many of

Which Are Identical or Indistinguishable

From Measures Previously Upheld by This

heal BIS Ny huahaaunshdeedbaadaabebiadecs

E. The Additional Fee Is Constitutionally In-

distinguishable From Any Other Form of

Regulatory Control Over [mportation of

Articles Which Spread Disease, Pestilence

and Death _. SAE FER RD Sasol

Page

CONCLUSION .

TABLE OF CONTENTS—Continued

IV. Alabama’s Differential Fee Structure Serves A

Legitimate State Purpose Which Cannot Be

Adequately Served By Any Nondiscriminatory

I ii EA cAI aa TOR

A. Alabama’s Differential Fee Structure Is

Demonstrably Justified by Valid Factors

Unrelated to Economic Protectionism ............

B. Alabama’s Legitimate Purpose Cannot Be

Adequately Served by Any Nondiscrimina-

Ur ai a

. The Public Interest In The Safe Management Of

Hazardous Waste Would Be Better Served By

Recognizing, Rather Than Destroying, The Abil-

ity Of The States To Control The Interstate

Movement Of Hazardous Waste

A. A Holding by This Court That States Are

Powerless To Control the Importation of

Hazardous Waste Would Virtually Assure

That No State Will Permit the Development

of Any New Commercial Hazardous Waste

B. Affirming the Decision of the Supreme

Court of Alabama Will Not Adversely Affect

Proper Management of Hazardous Waste _..

ele ieeied tht ht hhteee LL EEEE LLL LL LTT LETT eee

Page

TABLE OF AUTHORITIES

Cases Page

Asbell v. Kansas, 209 U.S. 251 (1908) .......... eee 20, 32

Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511

TINTED ciidhdicatabialaitieenethpadiberiateabscumblerstiddismnesiguilenéiatebeaticots 20

Bowman v. Chicago & Northwestern R. Co., 125

ETERS LLP aT OE! VE 20, 36

Clason v. Indiana, Ind. ——, 17 N.E.2d 92

(1938), aff’d, 306 U.S. 442 (1939) 2.0000... 26, 30

Clason v. Indiana, 306 U.S. 442 (1939) ........ 20, 25-27, 30

Compagnie Francaise v. State Bd. of Health, Lou-

GOUURE, BID TE. BD CRUD neckecen eects eccecctescseeseees 20, 29

Crossman v. Lurman, 192 U.S. 189 (1904) _......... 20

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824)..... 14, 20

H. P. Hood & Sons v. DuMond, 336 U.S. 525 ........ 22

Hannibal and St. Joseph R.R. Co. v. Husen, 95

RIE ICES 20, 31

Kimmish v. Ball, 129 U.S. 217 (1889) 2000000000 0... 20, 32

Louisiana v. Texas, 176 U.S. 1 (1899) 0.000000... 20

Maine v. Taylor, 477 U.S. 131 (1986) ...0 14-16, 20

Mendicoa v. Wyoming, 780 P.2d 1346 (Wyo.

SII ticsacicnleh died haleehisdhinsnasbdinediumierdidaaincsdichtmmnsiiaacidaassenes 25

Minnesota v. Cloverleaf Creamery Co., 449 U.S.

a ae 21

Mintz v. Baldwin, 2 F. Supp. 700 (N.D.N.Y.),

gp Se he SS S| eee 30, 31, 32

Mintz v. Baldwin, 289 U.S. 346 (1933) ........20, 30, 31, 37

Missouri, Kansas, & Texas R. Co. v. Haber, 169

A ae BI i Ba 20

New Energy Co. of Indiana v. Limbach, 486 U.S.

ne eae A siroernars said 16, 39, 45

Oregon-Washington R. & Nav. Co. v. Washington,

ge ERE Rs ltae or roa 20, 32

Philadelphia v. New Jersey, 437 U.S. 617 (1978) .. 15-16,

19-23, 29, 47, 49

Pike v. Bruve Church, Inc., 397 U.S. 137 (1970) ..... 31

Rasmussen v. Idaho, 181 U.S. 198 (1901) ............... 20

Reid v. Colorado, 187 U.S. 137 (1902)... 20

Robertson v. California, 328 U.S. 440 (1946) ....... 22

Sligh v. Kirkwood, 237 U.S. 52 (1915) 00000. 20

Smith v. St. Louis & Southwestern R. Co., 181 U.S.

248 (1901)

vii

TABLE OF AUTHORITIES—Continued

Page

Sporhase v. Nebraska, 458 U.S. 941 (1982) ........... 22

State v. Lovelace, 228 N.C. 186, 45 S.E. 2d 48

> a a ee 25

U.S. v. Taylor, 752 F.2d 757 (1st Cir. 1985), rev'd

sub nom. Maine v. Taylor, 477 U.S. 131 (1986)... 15, 47

Winkler v. Colorado Dep’t of Health, 193 Colo. 170,

Rk OE EF, ee eee 25

Wyant v. Figy, 340 Mich. 602, 66 N.W.2d 240

il tia i. cies dana anansdamsniviincocnbinenmmibagiinne 25

Wyoming v. Oklahoma, U.S. ——, 117 L.Ed.

I id cael a ae 39

Statutes and Regulations

Ala. Admin. Code, Chap. 80-3-1 —..............00000..-.... nts 31

Ala. Code § 22-BOB-1 () ..................-.2.---0000--ccseseeeeeseeee 13

Ark. Stat. Ann. § 2-22-11 _.... SC ee aE CA 36

Conn. Gen. Stat. Ann. § 22-308 __..............-----.............. 36

Conn. Gen. Stat. Ann. § 22-325..........-..--..... ene 36

Del. Code Ann. tit. 3, § 7304... proton eheet 36

Ss I ID on. cssscernssncnsnnininsccnneesonnesons 36

I I aenanesintncetenensesssinabias 27, 36

III... scncepenetenntntnscnamssnceeeonanenns 36

Ind. Code Ann. § 15-2.1-16-15 ................... lech aateddicah = 26

Mass. Gen. Laws Ch. 129, § 14D ................. cigieiantl < 36

R.I. Gen. Laws § 4-4-19, 4-5-7 _.....0000.000000 eee eee 36

- 5 (5 | ___ Eeaeren meee 36

icc ccnccssnsseemenccerceetonnaseeniansevts 49

40 C.F.R. 8§ 271.22-.28 ...................... ON se Ee 7 49

42 U.S.C. 6929(b) .................. Se a ee cng 49

GD osnccevncersncnecnscesecececcneneessesees 11, 18, 24

I PO eens Cored So 11

42 U.S.C. § 9604 (c) (9) .............---.00--000--eceeeeeresens ne 49

a ccc acidncncnkgecmiceomensnnenncescsasste ‘alpakan 9

Le Lk | eee sciatiaidianathiahaaccaceielbibeas 49

RR ee ae ee 49

I sca csteonsenennntonsnacesee ieagiebes 49

42 U.S.C. § 9607 _. Ris Ke EE ae 40

42 U.S.C. § 9607 (b) . STS aN akoes No RR 41

Ala. Act No. 90-326 ........... .......... Aatantienickimasaienias ...2, 8, 18

Abe. AGE TRO. GOeTET ..2222220-.cccerecrccvecccccccseecervce-scesescossosee 2

Viii

TABLE OF AUTHORITIES—Continued

Page

Comprehensive Environmental Response, Compen-

sation, and Liability Act of 1980 (CERCLA), 42

Nn I a 1,9

Internal Revenue Code, §§ 4064, 4861-62... 37

Resource Conservation and Recovery § Act

RI AC ae el 11-13, 18, 49

Superfund Amendments and Reauthorization Act

RRR RSS ci Le 6 ee Neca 10, 12, 13

Other Authorities

50 Fed. Reg. 46437 (Nov. 8, 1985) 49

52 Fed. Reg. 46466 (Dec. 8, 1987) VE Te 49

53 Fed. Reg. 16264 (May 6,1988)..... 49

54 Fed. Reg. 27170 (June 28,1989)... 49

132 Cong. Rec. § 14924 (Oct. 3,1986) 12

Delogu, “NIMBY” as a National Environmental

Problem, 35 S. Dak. L. Rev. 198 (1990) .......... 12

GAO/RCED-90-64, “HAZARDOUS WASTE, Funding

of Postclosure Liabilities Remains Uncertain”

Re re ie er) eerie 4-5, 8-16

Note, Constitutionally Mandated Southern Hos-

pitality: National Solid Wastes Management

Association and Chemical Waste Management,

Inc. v. Alabama Department of Environmental

Management, 60 N. Car. L. Rev. 1001 (1991) .... 3

Miscellaneous |

EI Digest, March 1992 ................ 2,11

National Governors Association, Policy Positions,

“D-17. Hazardous Waste Management, § 17.8

Interstate Shipments of Hazardous Waste,”

a eee Re RD ok. A eee 12, 49

NGA, RCRA Reauthorization Subcommittee State /

EPA Committee Report, “Recommendation for

Reducing the Tensions Associated with the In-

terstate Movement of Subtitle C Wastes,” Sep-

I 12

The Birmingham News/Post Herald... ——s 18

The Montgomery Advertiser... 2

The Wall Street Journal 18

BRIEF FOR THE RESPONDENTS

STATEMENT OF THE CASE

A. The Substances Permanently Buried at Petitioner’s

Emelle, Alabama Facility Pose Serious Threats to

Human Health and the Environment.

The hazardous wastes permanently buried at Emelle

include “substances that are inherently dangerous to

human health and safety and to the environment.” Pet.

App. 58a-59a. The Environmental Protection Agency

(EPA) has identified 455 chemicals and substances as

hazardous. J.A. 15-16. The Emelle facility is permitted

to manage virtually all these chemicals and substances.

Id. In addition, it is permitted to manage PCB’s (poly-

chlorinated biphenyls) and CERCLA waste, which en-

compasses even a wider range of chemicals under “the

Clean Water Act or Air Act.” Id.

These wastes are reactive, with ignition and explosion

potential, and are toxic, carcinogenic, mutagenic, and

damaging to human life and health. /d. The lower courts

found these hazardous wastes consist of “ignitible, cor-

rosive, toxic and reactive wastes which contain poisonous

and cancer causing chemicals and which can cause birth

defects, genetic damage, blindness, crippling and death.”

Pet. App. 59a. Studies confirm that when these sub-

stances get into the groundwater they cause cancer, mal-

formed babies, miscarriages, and other deleterious health

consequences, J.A. 16. Among the chemicals permanently

buried at Emelle are arsenic, mereury, lead, cadmium,

chromium and cyanide. Pet. App. 59a; J.A. 17. These

metals are highly soluble in water and quickly move into

the water table when presented with the opportunity.

J.A. 17. The trial court found that “should a sudden or

non-sudden discharge or release occur, hazardous wastes

could pollute the environment, contaminate drinking

water supplies, contaminate the groundwater and enter

the fcod chain.” Pet. App. 59a.

Despite treatment, many 0° the substances at Emelle

will remain hazardous forever, Pet. App. 59a, and the

—

landfill will require monitoring and superintendence in

perpetuity. Pet. App. 6la; J.A. 10-11, 138.

B. Emelle Is the Largest Hazardous Waste Landfill in the

Country, and the Volumes of Waste Landfilled There

Substantially Increased in the Years Preceding Act

No. 90-326.

The Emelle facility was opened in 1977 and was ac-

quired by Petitioner in 1978. R.T. 4; Def. Ex. 40, p. 2.

The facility encompasses 2,700 acres. J.A. 12-13. Peti-

tioner admits Emelle is the largest hazardous waste fa-

cility in the country; Rodger Henson, Petitioner’s Vice

President of Operations for the Southern Region, testi-

fied that he was not aware of any larger operation in the

world. J.A. 12.

The volumes of hazardous waste buried annually at

Emelle increased dramatically from 1985 to 1989, al-

though it decreased after Act No. 90-326 went into effect

on July 15, 1990:

1985 341,000 tons

1986 456,000 tons

1987 564,000 tons

1988 549,000 tons

1989 791,000 tons

1990 648,000 tons

1991 290,000 tons '

J.A. 23, and EJ Digest 24, March 1992.

1 While the total volumes of hazardous waste shipped to Emelle

has declined since the Act’s passage, the percentage of out-of-state

waste has remained the same. Prior to enactment of the Act, 85 to

90% of the hazardous waste buried at Emelle was from out of state

waste. Pet. App. 58a. From July 15, 1990 through December, 1991

the amount of out of state hazardous waste was 89% of the total.

Ala. Dept. of Rev. Press Release, “U.S. Supreme Court to Hear

State/Chem Waste Case,” March 30, 1992; The Montgomery Ad-

vertiser, “High Court to Consider Extra Tax on Tainted Waste,”

March 31, 1992, p. 5A. The “Base Fee” applying to all waste was

also increased by Act No. 90-326, to $25.60 per ton from $15.60 per

ton. See Ala. Aci No. 89-787 (former Ala. Code § 22-30B-2(a) ).

In the five year period from 1985-1989 immediately pre-

ceding adoption of Act 90-326, the annual tonnage of

hazardous waste permanently landfilled at Emelle in-

creased 232%.

In 1989, approximately 40,000 truckloads of hazardous

waste were delivered to Emelle. Pet. App. 62a. Petitioner

was operating around the clock and trucks were backed

up from the facility out onto the highway.” Jd. The in-

creased volumes have impaired the Alabama Department

of Environmental Management’s (ADEM) ability to

monitor and perform its regulatory functions. J.A. 23-24.

Petitioner estimates Emelle has capacity for another

100 years of operation, and if left unrestricted the dis-

posal volumes will increase annually. J.A. 9.°

C. While Hazardous Waste Is Regulated, the Regulations

Do Not Assure That Permanent Burial of Hazardous

Waste Is Safe.

The deficiencies of current EPA regulations and the

ongoing dangers of hazardous waste disposal are high-

lighted by the General Accounting Office’s (GAO) find-

2 Bill Brock, Director of the Alabama Emergency Management

Agency, the agency with responsibility for any emergency situation

in the state, testified there were in excess of 100 trucks entering the

facility some days, which impacted the roadways in the area. J.A.

39. Petitioner acknowledged that it handled 350 trucks in one day.

J.A. 137.

3 Another CWM witness testified the industry expects the amount

of hazardous waste generated will decrease as more pressure is put

on industry and better technology is developed. J.A. 131. However,

a survey of U.S. and Canadian insurance actuaries showed “the

actuaries believe chemical wastes will pose the greatest threat to

public health and generate the greatest environmental cost to

society by the turn of the century.” Note, “Constitutionally Man-

dated Southern Hospitality: National Solid Wastes Management

Association and Chemical Waste Management, Inc. v. Alabama De-

partment of Environmental Management,” 69 N. Car. L. Rev. 1001,

1022 n.143 (1991), citing 20 Env’t Rep. (BNA) 539-40 (July 14,

1989).

ings in a June 1990 report to Congress.‘ J.A. 68-90; Def.

Ex. 4; R.T. 232.

The GAO report notes, “As evidenced by the events at

Love Canal, Times Beach, and thousands of other sites

contaminated by hazardous wastes, land disposal of these

wastes presents a significant threat to human health and

the environment.” J.A. 75.° GAO determined:

The long-term effectiveness of current land disposal

practices in controlling the migration of hazardous

waste is not known, but EPA and others believe it is

likely that some of the permitted hazardous waste

disposal facilities will release hazardous substances

into the environment at some period after they close.

... Although EPA is aware of the potential for re-

leases, it has not developed a strategy for addressing

long-term postclosure concerns.

J.A. 71.

Even though EPA enacted regulations governing the dis-

posal of hazardous waste, GAO found “|{]]ittle experience-

based data exist . . . on the long-term performance of

these technology requirements in preventing waste migra-

tion .. . EPA and others believe that permanent contain-

ment of wastes is not possible... .” J.A. 72.° Based on

these findings, GAO concluded that “land disposal of these

|hazardous| wastes presents a significant threat to hu-

man health and the environment,” and “the magnitude

of post-closure liabilities that could be incurred simply

cannot be measured at this time.” J.A. 75, 81. EPA’s

4 GAO/RCED-90-64, “HAZARDOUS WASTE, Funding of Postclosure

Liabilities Remains Uncertain” (June 1990) (Def. Ex. 4).

5 GAO noted that despite the dangers, extensive hazardous waste

landfilling is occurring. “Although past land disposal of hazardous

waste has resulted in major environmental contamination and seri-

ous health effects, land disposal of these wastes continues. About

13 million metric tons of hazardous waste is disposed each year.”

J.A. 70.

®“EPA’s position was, and still is, that absolute prevention of

migration forever, or for the long term, is beyond the current tech-

nical state of the art.” J.A. 83.

Science Advisory Board “determined that it is difficult

to predict that improved land disposal will be protective

of human health and the environment for the long-term.”

Def. Ex. 4 at 24; R.T. 232.

The following extract from that 1990 GAO report

underscores the leakage problem already found to exist

at the Emelle facility, as well as the seriousness of the

long-term problems:

University researchers we talked with also said that

problems may exist with a long-term effectiveness of

current waste containment technology. One researcher

said that there is little doubt that current hazardous

waste facilities will leak. He said that present re-

search shows that these systems will fail at some

point, particularly after post-closure care ends, and

that he views today’s disposal of hazardous waste as

merely a storage mechanism for hazardous waste that

may have to be removed eventually. Another univer-

sity researcher told us that the technology used today

is the best available but that it is simply unknown if

it will keep wastes in place.

J.A. 84 (emphasis added).

At Emelle, the hazardous waste is buried in trenches

cut into a formation called the Selma Chalk. The trenches

are cut deep and the new ones contain double synthetic

liners. R.T. 28-29. When filled, the trenches are closed.

covered and resodded. Hanley dep. Vol. II, at 115. Un-

derlying the Emelle facility is a 700 foot thick formation

of fractured chalk. J.A. 29-31. Under the chalk is the

Eutaw aquifer, a source of fresh water. Pet. App. 60a.

The risk of hazardous waste migration lies both in the

leakage of the hazardous waste and the leakage of a

poisonous leachate, which ferms when rainwater and

groundwater seep into the open or closed trenches. Pet.

App. 59a. It is impossible to prevent leachate forma-

tion. J.A. 148.

Petitioner pumps the leachate from the trenches, stores

it in storage tanks, and then ships it to an aqueous stor-

age facility in Texas. J.A. 132. The storage tanks hold

5 million gallons of leachate. With the current landfilled

volumes, Petitioner pumps 10-15 million gallons of leach-

ate from the trenches annually. J.A. 129. Obviously, this

amount will increase as more waste is imported. Cur-

rently, there are 70 monitoring wells. J.A. 9-11. These

wells must be monitored forever. Jd. As more trenches

are added, more wells will be installed.’ Petitioner em-

ploys four chemists and technicians who spend half their

time monitoring leachate. J.A. 129. The annual cost to

Petitioner of monitoring leachate is $100,000-$150,000

per year, and the annual cost of gathering, collecting,

storing, transporting and disposing of the leachate at

current volumes is $2 to $3 million per year. J.A. 129.

The security, maintenance, monitoring and disposal of

leachate is required forever. J.A. 10-11. Petitioner has

this responsibility under federal law for 30 years after

closure of the site, but thereafter, the State of Alabama

will bear this expense in perpetuity. /d.

Although some of the wastes will remain hazardous

forever, Petitioner admits it does not know how long

the trench liners will last. J.A. 127. Petitioner’s expert

witness and long-time consultant, William Brumund,

testified the liners would only retard migration for the

short term, measured in tens of years. Pet. App. 60a.

In fact, in 1983 a consultant to Petitioner, Golder Associ-

ates, reported to Petitioner that the water pressure in

the trenches would eventually cause leakage of fluid from

the trenches into the surrounding chalk. Pet. App. 59a.

Because the liners will not last indefinitely, Petitioner is

relying upon the Selma Chalk to stop the mitigration of

hazardous waste. J.A. 127. However, as the chalk has

faults and fractures which conduct fluids, it is signifi-

cant that some of the older trenches at Emelle are

already leaking leachate. Pet. App. 59a. Former Ala-

bama state Geologist Tom Joiner testified that leachate

7 The wells themselves, since they penetrate into the Selma Chalk,

create new conduits for hazardous waste to reach the underlying

groundwater. Pet. App. 61a.

has moved out of the trenches at Emelle, and the flow is

moving into the Selma Chalk. J.A. 43.

Furthermore, there are faults and joints (cracks) in

the Selma Chalk that are known geologically “to be com-

monly capable of transmitting water”, and thus, leachate.

J.A. 29. Dr. Richard Groshong, a geologist, performed a

study of the faults in the Selma Chalk and found “con-

siderable evidence” that at least some of the faults are

transmitting water now. J.A. 29-30.* Dr. Groshong testi-

fied that it is unknown if the faults go all the way down

to the Eutaw aquifer underlying the Emelle facility, but

it is “perfectly possible” that they do. Jd.” Finally, Dr.

Groshong testified the faults and fractures in the Selma

Chalk have not been properly mapped and that aerial

photographs confirm faults in the trenches at Emelle.

J.A. 31.

Leakage of leachate from the Emelle trenches occurs

in two ways. Leachate can leak downward into the Selma

Chalk. Pet. App. 12a. A second, equally serious, concern

is lateral migration close to the surface of the trenches.

Emelle is located in a drainage basin of the Tombigbee

and Noxubee Rivers, which are major sources of fresh

water to the State of Alabama. Pet. App. 60a. Leachate

can flow laterally down the natural drainage gradient

into the tributaries of the Tombigbee and Noxubee. 7d.

Petitioner’s expert witness Brumund testified that

leachate will continue to be generated at the facility.

J.A. 148. Joiner further testified that the facility will

have to be monitored, with regulatory surveillance and

8 Dr. Groshong found that the chalk was “chemically etched,”

indicating conduits for water, and is “significantly stained with

iron” which is evidence of water leaking through the chalk. J.A. 30.

* Time estimates of the speed at which leachate will penetrate

through the chalk to the underlying Eutaw acquifer are greatly

variable. EPA estimates ranged upward from 330 years, with CWM

estimating 10,000 years. Pet. App. 60a. Nonetheless, faults and

fractures greatly accelerate travel time through the chalk and, as

noted above, some faults and fractures may extend down to the

Eutaw aquifer. Pet. App. 61.

maintenance forever, and the grounds protected against

future erosion. J.A. 47, 49.'°

There have been spills, release of emissions and truck-

ing accidents at Emelle. J.A. 20-22. Emelle is in an

earthquake zone, yet Petitioner has no contingency plans

in the event of an earthquake. J.A. 19, 40."

D. Current Financial Assurance Requirements Are Inade-

quate To Protect Against the Perpetual Risks.

As to protecting against future liabilities, GAO noted

“the magnitude of postclosure liabilities . . . simply can-

not be measured at this time.” J.A. 81. Similarly,

Bernard Webb, an insurance specialist, testified that very

little is known about the effectiveness of the technology

for hazardous waste landfilling '* and “insurance is for

practical purposes almost unavailable.” J.A. 115. He

testified given the scope of Emelle, for Alabama’s pur-

poses insurance is not “available in amounts adequate for

the risk.” J.A. 116. Webb estimated that the State of

Alabama would need an insurance policy with limits of

$1 billion to insure it against the risks of Emelle. J.A.

123. The premium for such a policy would run from

$150 million a year, J.A. 124, and there is no such policy

1° Joiner’s exact testimony concerning the perpetual monitoring

and superintendence was as follows:

You know it’s one thing to think 30 years and something else

to think 100 years; but when you think about it’s going to be

there as long as this State is here, then that puts another

perspective on it.

J.A. 49.

11 There was an earthquake in Sumter County, Alabama wherein

Emelle is situated in 1886 which caused a one-half foot to one foot

vertical ground movement. J.A. 126. Joiner testified that the past

earthquake is significant because it is reasonably certain to happen

again and that it would not take a major earthquake to crack the

materials that seal some of the faults and allow new avenues for the

leakave of hazardous waste. J.A. 48-50.

2 Hanley of CWM testified, “The industry is only 10 years old

and people are continuing to learn about leachate and water pres-

sures and secondaries. There is no definite answer.” J.A. 140.

available, J.A. 121. He estimated that if the Eutaw

aquifer was contaminated the cost would be virtually

incalculable, in the billions of dollars. J.A. 118.

GAO noted “[p]rivate sector options for funding post-

closure liabilities include private insurance, coinsurance,

reinsurance, and voluntary risk pooling.” J.A. 87. GAO

found that “|b|ecause of the unknown liabilities and per-

ceived risk associated with hazardous waste disposal fa-

cilities after they close, these postclosure funding mecha-

nisms are currently not viable options.” Jd."

Congress has recognized the potential unlimited liabil-

ity for hazardous waste sites. In enacting the Compre-

hensive Environmental Response, Compensation, and Lia-

bility Act of 1980 (CERCLA), 42 U.S.C. §§ 9601-9675,

Congress established a $200 million Post Closure Liability

Trust Fund (PCLTF) to assume liabilities at permitted

hazardous waste disposal facilities after closure.’ J.A.

77. However, Congress became concerned that the fund

would not have sufficient resources to pay the magnitude

of liabilities that would be incurred. J.A. 78. Accord-

13Mr. Webb estimated that in the highly unlikely event of a

tornado striking the PCB tanks at Emelle, the remedial cost would

range from $126 million to $1.9 billion. J.A. 118. While also highly

unlikely, if a truck carrying PCB’s crashed into the adjoining river,

the remedial cost would be from $10-$99 million. /d.

4 The unavailability of insurance is due in part to “[t]he in-

ability to measure or quantify the liability exposure at hazardous

waste facilities along with a perception by the insurance industry

that liabilities are certain to occur after these facilities close.” J.A.

88 (emphasis added).

Similarly, risk pools are “not a viable option for postclosure lia-

bility funding.” J.A. 89. “Because postclosure liability is uncertain

and potentially unlimited, Treasury determined that underwriting

the risk of postclosure is no more acceptable to mutual associations

than to individual insurance companies.” J.A. 89.

15 After transfer of liability, the fund, generated from a tax on

disposed hazardous waste, would pay for monitoring and main-

tenance beyond the 30-year postclosure period and for damages, such

as groundwater contamination and necessary clean up operations.

42 U.S.C. § 9641.

ingly, in enacting the later SARA amendments Congress

suspended the transfer of liability to the PCLTF and

abolished the fund. J.A. 78; Pub. L. 99-499, § 201.

As GAO noted, “Postclosure financial assurance is cur-

rently required by EPA only for 30-year maintenance and

monitoring as well as identified corrective action costs.”

J.A. 86. However, there is no financial assurance “for

potential but unknown postclosure liabilities such as on-

site cleanup or off-site damage.” /d. EPA does not re-

quire funds to be set aside for these contingencies. /d.

Nor is there any long term assurance owner-operators

will or can provide remediation: “No one can _ predict

what the future financial situation of any owner opera-

tor will be in the long-term with any certainty, and if an

owner operator were to become bankrupt or otherwise go

out of business, there is little likelihood that funding

would be available for unanticipated postclosure costs.”

J.A. 86.

Thirty years after closure Alabama will have the finan-

cial burden of maintaining these expensive monitoring

systems in perpetuity. The trial court found:

... Although it will be necessary to monitor, regu-

late, maintain (including the pumping, collection,

storage, transportation and disposal of leachate from

the trenches), and secure the facility forever, Peti-

tioner has made no provision for the payment of such

costs beyond a period of 30 years after closure. Addi-

tionally, there has been no provision for the payment

of any abatement, corrective, or remediation costs,

compliance monitoring, third-party damages or nat-

ural resource damage.

. . . Whenever Petitioner’s planned or unplanned

cessation of activities at Emelle occurs, there will be

substantial financial and environmental risks to the

people, businesses, and corporations of Alabama.

Pet. App. 62a-63a.

E. The Act Is Consistent With Federal Policy.

In the 1984 amendments to the Resource Conservation

and Recovery Act (RCRA), Congress declared its policy

that “whenever feasible the generation of hazardous

waste is to be reduced or eliminated as expeditiously as

possible.” 42 U.S.C. § 6902(b). Moreover, Congress has

expressed a preference against the landfilling of hazard-

ous waste.'"" Mr. Henson of Petitioner testified that as

a result of the Additional] Fee, less volume of hazardous

waste is shipped to Emelle, and there are “probably some

waste minimization programs underway.” J.A. 128.

Further, in the Superfund Amendments and Reau-

thorization Act (SARA), Pub. L. 99-499, amending scat-

tered sections of 42 U.S.C. §§ 9601-9675 (Supp. IV

1986), Congress required each state to demonstrate ca-

pacity to dispose of its hazardous waste for the next

twenty years by disposal in in-state facilities or by agree-

ments with other states. Petitioner’s expert witness

Brumund testified a hazardous waste disposal site could

be engineered in each state in the nation. J.A. 143.7

The trial court found, “Although 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.” Pet. App. 57a. This local opposition to new sites

is called the “not-in-my-backyard” syndrome (NIMBY).

“!O]nly one additional hazardous waste landfill has been

16—In the Congressional findings accompanying the 1983 amend-

ments to RCRA, Congress found that “reliance on land disposal

should be minimized or eliminated and land disposal, particularly

landfill and surface impoundments, should be the least-favored

method of managing hazardous wastes... .” 42 U.S.C. § 6901(b)(7).

17 Currently in the United States, there are only 21 hazardous

waste commercial landfills located in sixteen states. Smith, “Hazard-

ous Waste Landfill Facility Information,” EJ Digest, at 26-27 (Table

I) (March 1992). Most of these facilities are much smaller than the

Emelle landfill. Jd.

permitted in the United States since the effective date

of RCRA, November 17, 1980”. Pet. App. 57a.’*

A recent development since the decision of the Alabama

Supreme Court is the adoption of a resolution by the

National Governors Association (NGA) in response to

the NIMBY effect on the hazardous waste problem. The

NGA adopted a policy encouraging a “fee-based” ap-

proach to the regulation of interstate movement of haz-

ardous waste. National Governors Association, Policy

Positions, “D-17, Hazardous Waste Management, § 17.8

Interstate Shipments of Hazardous Waste,” (1991-92) ;

NGA, RCRA Reauthorization Subcommittee State/EPA

Committee Report, “Recommendation for Reducing the

Tensions Associated with the Interstate Movement of

Subtitle C Wastes,” September 13, 1991, at 1-3. The

new policy endorses a differential fee between the dis-

posal of in-state and out-of-state hazardous waste. The

policy would allow an importing state to levy a “host

state fee’? on hazardous waste “imported for manage-

ment.” Jd. The differential, or host, fee would be “phased-

in over time and capped as a multiple of the state’s exist-

ing in-state fee” (or exporting state’s fee, if higher).’

18 The SARA capacity assurance requirements were enacted in

response to NIMBY:

Unfortunately . . . Congress failed to anticipate the intensity

of public opposition to new and expanded waste management

facilities. While everyone wants hazardous waste managed

safely, hardly anyone wishes it managed near them. This is

the NIMBY syndrome. Yet if RCRA and Superfund programs

are to work—public health and the environment are to be pro-

tected—the necessary sites must be made available.

132 Cong. Rec. § 14924 (Oct. 3, 1986) (Remarks of Senator Chafee).

See generally Delogu, “NIMBY” as a Nationa! Environmental Prob-

lem, 35 S. Dak. L. Rev. 198 (1990).

19 The purpose of the differential fee is:

This fee would accomplish two objectives: It would compensate

importing states for the costs and environmental risks they bear

as hosts to these facilities; and it would provide an additional

Id. at 1. The policy calls for a 4-1 differential in the fees

charged for out-of-state and in-state hazardous waste

landfilling. Jd. Attachment A. The differential under

the Alabama Act is less than 3 to 1, well within 4-1 dif-

ferential recommended by the NGA.

SUMMARY OF ARGUMENT

Whether the “commerce” in this case is in hazardous

waste, or waste disposal services or in landfill space, the

actual thing being bought and sold is a transfer of risk.

Public health dangers, and the risk of potentially catas-

trophic environmental damage, are transferred to Ala-

bama in perpetuity, and avoided by those in other states

who pay to have this risk transferred. Petitioner is

selling the risk of pollution of the Eutaw aquifer, to

those in other states whose groundwater will remain

uncontaminated because they sent their wastes to Ala-

bama. Petitioner is selling the risk of lateral seepage

of leachate into the tributaries of the Tombigbee River,

to those whose rivers may remain unspoiled because they

sent their waste to Alabama. Petitioner is selling the

future health of Alabama citizens, and the future in-

tegrity of Alabama’s environment, to those in other states

who will never have to face the social consequences. Cer-

tainly those who drafted the Commerce Clause did not

economic incentive for generators to either reduce their waste

generation or create in-state management options.

Id.

Both options are in accord with Congressional policy in RCRA and

SARA to disccurage landfilling of hazardous waste and for each

state to provide capacity assurance.

This burden was expressly recognized in the findings by the

Alabama Legislature that:

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

disposal.

Ala. Act No. 90-326, §1(d); Ala. Code § 22-30B-1(d); Pet. App.

103a.

envisage that they were creating a right to engage in

unfettered interstate “commerce” of this nature.

The differential fee structure adopted by the Alabama

legislature serves a legitimate purpose of accepting the

State’s responsibility for managing its own dangerous

waste, while protecting its citizens and environment from

the risks caused by the shipment into the State of un-

controlled volumes of additional dangerous wastes. This

purpose cannot be adequately served by any available

nondiscriminatory alternative.

Absent preemption by Congress, states may, under their

police powers, control the movement into the State of

articles which endanger the public health or safety or the

integrity of the state’s environment. This power has been

consistently recognized by this Court, from Chief Justice

Marshall’s early comments on the subject in Gibbons v.

Ogden, 22 U.S. (9 Wheat.) 1 (1824), through the recent

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

Court’s decisions make clear that this power is not dimin-

ished by the fact that the state may provide for the

regulated management or disposal of similarly danger-

ous items occurring within the state. States may require

dangerous articles already in the state to be managed

or disposed of as necessary to control and minimize the

dangers of those articles, while controlling the move-

ment of similarly dangerous articles into the state.*°

This state power has been so universally understood

and so well-settled by this Court’s decisions that, in the

context of articles which are in fact dangerous, no cred-

ible argument to the contrary could have been imagined

prior to 1978. And it remains clear that this traditional

framework continues to govern state measures regulat-

2° Petitioner, however, argues that where a problem already ex-

ists within a state, the state cannot control importation of more

such problems because there is an available nondiscriminatory alter-

native—accept an unlimited quantity of more such problems on the

same terms which the state employs to deal with the problems it

already has.

ing every dangerous item except “waste.” *' But since

1978, the waste disposal industry has seized on uncer-

tainties surrounding Philadelphia v. New Jersey, 437

U.S. 617 (1978), to attempt (with some success) to defeat

state efforts designed to manage waste disposal for the

protection of public health, safety and the environment.

The uncertainty in Philadelphia v. New Jersey is not

centered on the legal standard applied. The uncertainty

concerns the majority’s understanding or conception of

the facts to which the standard was being applied. Did

the Court really hold that public health and environmental

concerns were irrelevant? Or did the Court simply not

accept the existence of what it referred to as “allegedly

harmful effects’? 437 U.S. at 628. Did the Court really

hold that New Jersey was compelled to accept the burden

of importation of dangerous waste, because the State pro-

vided for disposal within the State of its own such waste?

Or did the court refer to the fact that New Jersey al-

lowed disposal of its own waste as evidence to support its

conclusion that the garbage was not, in fact, dangerous?

The language of the opinion, if merely read in isolation,

may be susceptible to the interpretation of the case ad-

vanced by Petitioner and the Solicitor General. How-

ever, when the case is considered within the framework

of this Court’s prior and subsequent decisions, it is clear

that the construction of the case urged by Petitioner and

the Solicitor General is inconsistent with principles which

have been well established and universally recognized for

over a century and a half.

21 The confusion surrounding Philadelphia v. New Jersey has,

however, in at least one instance resulted in a court erroneously

striking down a state law outside the waste context. The First

Circuit incorrectly relied upon Philadelphia v. New Jersey to dis-

tinguish Maine’s baitfish quarantine law from numerous indistin-

guishable measures designed to control the spread of animal dis-

eases, which measures have been consistently upheld by this Court.

U.S. v. Taylor, 752 F.2d 757, 761 (ist Cir. 1985), rev'd sub nom.

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

The majority opinion in Philadelphia v. New Jersey

applies the correct rule of decision where the court rejects

purported health, safety or environmental concerns and

finds a state measure to involve simple economic protec-

tionism. See, e.g. New Energy Co. of Indiana v. Limbach,

486 U.S. 269 (1988). Phe dissent, however, expresses the

correct rule of law where the court accepts that the state

is in fact acting in response to legitimate concerns. See,

e.g. Maine v. Taylor, 477 U.S. 131 (1986); see also cases

cited infra n.23. The disagreement between the majority

and minority in Philadelphia v. New Jersey appears to

have been not on which lega! standard to apply to a given

set of facts, but rather a disagreement concerning the

facts to which a standard was to be applied.

Hazardous waste landfills are not natural resources.

They are man-made, engineered facilities which exist and

operate because, and only because, the states in which

they are located allow them to exist and operate. Hazard-

ous waste is not hauled across the continent because of

any value of commerce in the waste; this movement oc-

curs due to the negative value, the dangers, of having

such waste present. The fact that Alabama permits the

Emelle facility to exist and operate to provide for the

management of the State’s own hazardous waste does not

mean that Alabama is required to accept unlimited addi-

tional quantities of imported hazardous waste, or to al-

low Petitioner to leave the State holding the perpetual

risk and burden of whatever unlimited quantities of

hazardous waste Petitioner may wish to bury in Alabama.

The construction of the Commerce Clause urged upon

this Court by Petitioner and its amici is inconsistent with

this Court’s numerous earlier cecisions recognizing and

upholding the power of the States to control the movement

into the State of artic'es which endanger public health,

safety or the environment. These cases are of significant

modern-day relevance, forming the constitutional frame-

work for numerous state regulatory measures. The rea-

soning of these cases and the principles applied are con-

sistent with, and form the basis of, the currently-

employed Commerce Clause standard applied to state

measures that discriminate against out of state articles

on grounds of health, safety, or environmental dangers.

This Court’s decisions have not turned on a “different

threat” or similar/dissimilar threat distinction. Under

the standard which Petitioner urges the Court to adopt

in this case, the only State that could continue to control

the movement into the state of diseased livestock would

be one whose cows never got sick.

Permitting any new hazardous waste disposal facility

is a politically difficult undertaking for state and loca!

officials. A holding by this Court that any such facility

which is permitted must be allowed to import and leave

the local community burdened with such additional haz-

ardous waste as the operator of the facility may choose

would make the permitting of any new commercial hazard-

ous waste disposal facility a political impossibility. Any

state would, understandably, be hesitant to allow the

waste disposal industry to operate within the state under

the rules Petitioner seeks to establish in this case.

ARGUMENT

ALABAMA’S FACIALLY DISCRIMINATORY FEE

STRUCTURE, WHICH IMPOSES A $72 PER TON AD-

DITIONAL FEE ON OUT-OF-STATE WASTE, DOES

NOT VIOLATE THE COMMERCE CLAUSE

I. Alabama Has Legitimate Concerns About The Land-

filling Of Large Volumes Of Imported Hazardous

Waste.

The public health, safety and environmental dangers

resulting from the activity which the challenged statute

was designed to control are well-documented and uncon-

troverted in the record of this case. Any suggestion that

. current technology or regulations are adequate to con-

trol these dangers is refuted by the findings of Congress

and the GAO, as well as by the facts established in this

case.**

*2 Petitioner admits seven sanctions against it in the past by EPA

for regulatory violations with respect to operations of the Emelle

As Congress has declared, “reliance on land dis-

posal should be minimized or eliminated, and land dis-

posal, particularly landfill and surface impoundment,

should be the least favored method for managing haz-

ardous wastes,” because such facilities “are not capable

of assuring long-term containment of certain hazardous

wastes, and to avoid substantial risk to human health

and the environment.” Resource Conservation and Re-

covery Act of 1976, as amended (RCRA) § 1002(b) (7),

42 U.S.C. § 6901(b)(7) (emphasis added).

The GAO reported to Congress in 1990 that current

technology is inadequate to protect against the long-term

risks of landfilling hazardous waste. J.A. 69-90. GAO

found that “EPA and others believe that permanent con-

tainment of wastes is not possible and that leakage will

occur at some time after the 30-year postclosure period.”

J.A. 72 (emphasis added).

As the Solicitor General acknowledged in his brief in

support of certiorari,

“!t}he State of Alabama plainly has legitimate and

well-founded concerns about the disposal of hazardous

wastes at the Emelle Facility. The health, safety and

facility. Exhibit 20 & 20A to Rodger Henson's deposition, identified

at pages 118-125. The deposition was offered (T.R. 572) and ad-

mitted (T.R. 573). There were 12 on-site spills at Emelle from 1989

to the October 1990 trial. J.A. 20-22. Petitioner has also recently

admitted in a 10K filing with the United States Securities and

Exchange Commission that it currently faces six potential govern-

ment actions involving unnamed waste handling sites, each of which

actions involve potential sanctions of more than $100,000; and that

it is under criminal investigation for possible procurement and

environmental law violations in connection with cleanup work it

did for the Army Corps of Engineers. The Wall Street Journal,

April 2, 1992, at A4.

In addition, federal officials recently said that more than 750,000

pounds of dirt contaminated with small amounts of radioactive

uranium from the federal nuclear weapons facility at Oak Ridge,

Tennessee were believed to have been improperly sent to the haz-

ardous-waste landfill at Emelle. The Birmingham News/Post Herald,

February 15, 1992, at 1A.

er ee ee

welfare of its citizens in the area of the facility, the

safety of travelers on the roads leading to the facil-

ity, and the future condition of the natural resources

and the environment of the State are all potentially

implicated by the disposal of hazardous wastes.”

Brief for U.S. in support of petition at 8.

Il. Philadelphia v. New Jersey Is Not Controlling In The

Context Of Real And Substantial Health, Safety And

Environmental Risks.

Petitioner, in effect, is asking this Court to establish

as a rule of constitutional law the following:

If a state permits the disposal within its borders of

its own noxious items which threaten public health,

safety and the environment, then the state must also

accept and allow disposal within the state, on the

same terms, all such noxious items from all other

states, regardless of the increased risk thereby cre-

ated to the health and safety of citizens of the recipi-

ent state and to its environment.

Petitioner argues that such a rule follows from this

Court’s decision in Philadelphia v. New Jersey. Petition-

er’s construction of Philadelphia v. New Jersey would

place that case in direct conflict with every relevant deci-

sion of this Court before and since that decision.

Philadelphia v. New Jersey should be interpreted, as

the Supreme Court of Alabama interpreted the case, in a

manner consistent with well-established law—as a case

striking down a measure to protect in-state interests from

out-of-state economic competition. Numerous decisions of

this Court recognize the states’ power to_control importa-

tion of dangerous items.** Petitioner’s only basis for

23 See Maine v. Taylor, 477 U.S. 131 (1986). For other examples

(hereinafter referred to collectively as “quarantine cases”), see

Clason v. Indiana, 306 U.S. 442 (1939); Mintz v. Baldwin, 289 U.S.

346 (1933); Oregon-Washington R. & Nav. Co. v. Washington, 270

U.S. 87 (1926); Sligh v. Kirkwood, 237 U.S. 52 (1915); Asbell v.

Kansas, 209 U.S. 251 (1908); Crossman v. Lurman, 192 U.S. 189

(1904); Reid v. Colorado, 187 U.S. 137 (1902); Compagnie Fran-

attempting to distinguish these cases is to argue that

Philadelphia v. New Jersey held that a state’s unques-

tioned power to control importation of such items some-

how disappears merely because the state is already deal-

ing with similarly dangerous items to a limited extent

within the state.

It is not disputed that one ton of out-of-state waste is

no more dangerous than one ton of comparable in-state

hazardous waste.** But that is not determinative. It is

also indisputable that the 788,000 total tons of hazardous

waste buried by Petitioner at Emelle in 1989 present a

considerably greater threat to Alabama than the 69,000

tons of Alabama-generated waste buried there that year.

Even so, Petitioner unreasonably argues that the State

loses its otherwise clear power to protect itself against

overwhelming volumes of out-of-state dangerous waste

caise v. State Bd. of Health, Louisiane, 186 U.S. 380 (1902); Smith

v. St. Louis & Southwestern R. Co., 181 U.S. 248 (1901) ; Rasmussen

v. Idaho, 181 U.S. 198 (1901); Lowisiana v. Texas, 176 U.S. 1

(1899); Missouri, Kansas, & Texas R. Co. v. Haber, 169 U.S. 613

(1898); Kimmish v. Ball, 129 U.S. 217 (1889).

Other cases recognizing the State’s power include Baldwin v.

G.A.F. Seelig, Inc., 294 U.S. 511 (1935); Bowman v. Chicago &

Northwestern R. Co., 125 U.S. 465 (1888); Hannibal and St. Joseph

R.R. Co. v. Husen, 95 U.S. 465 (1878); Gibbons v. Ogden, 22 U.S.

(9 Wheat.) 1 (1824).

*4 This assumes, of course, that the wastes are comparable. Out-

of-state waste does, however, differ from in-state waste in one im-

portant respect. As discussed in the amicus brief submitted by the

States of Ohio and Kentucky, states are unable to monitor out-

of-state waste streams at their source, leaving the state with sub-

stantial uncertainty as to the hazardous constituents. Indeed, out-

of-state waste often moves through brokers and even Petitioner is

without knowledge of the source of the waste. Statement of George

Vander Velde, Petitioner’s Vice President of Science and Techno!-

ogy, to the Committee on Interior and Insular Affairs, U.S. House

of Representatives, February 20, 1992. A copy of Mr. Vander

Velde’s written statement has been lodged with the Clerk of this

Court. The dangers inherent in such uncertainty were recently

emphasized by the discovery that Petitioner had illegally buried in

Alabama some 750,000 pounds of low-level radioactive waste from

government contractors. See supra n.22.

simply by being responsible enough to permit the reg-

ulated disposal within the State of its own such waste.

It is clear that the majority opinion in Philadelphia

v. New Jersey considered New Jersey’s ban on out-of-

state garbage to amount to simple economic protectionism,

protecting New Jersey residents from out-of-state com-

petition for landfill space. This Court has consistently

characterized Philadelphia v. New Jersey as a case in-

volving economic protectionism, in contrast to environ-

mental protection. For example, in Minnesota v. Clover-

leaf Creamery Co., 449 U.S, 456 (1981), this Court cited

Philadelphia v. New Jersey as supplying the rule of

decision where “a state law purporting to promote en-

vironmental purposes is in reality ‘simple economic pro-

tectionism’.”” 449 U.S. at 471 (emphasis added).*

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

cited Philadelphia v. New Jersey for the proposition that

“Is|hielding in-state industries from out-of-state com-

petition is almost never a legitimate local purpose, and

state laws that amount to ‘simple economic protectionism’

consequently have been subject to a ‘virtually per se

rule of invalidity’” while, in contrast to Philadelphia v

New Jersey, “there is little reason in this case to believe

that the legitimate justifications that the State has put

forward for its statute are merely a sham or a ‘post hoc

rationalization’.” Maine v. Taylor, 477 U.S. at 148-49.

Again, in Maine v. Taylor, this Court used Philadelphia

v. New Jersey as an example of a case in contrast to

cases “where, as in this case, out-of-state goods or serv-

ices are particularly likely for some reason to threaten

the health and safety of a State’s citizens or the integrity

*5 Given the substantial increase since 1978 in the understanding

of the health and environmental risks associated with the landfilling

of solid waste such as that involved in Philedelphia v. New Jersey,

that case might be decided differently today on a record establishing

those risks. Such a record is unlikely to be developed so long as lower

courts continue summarily to strike down responsible state and local

efforts to manage waste disposal! problems.

of its natural resources” to make the point that “[n]jot

all intentional barriers to interstate trade are protec-

tionist, however, and the Commerce Clause ‘is not a

guarantee of the right to import into a state whatever

one may please, absent a prohibition by Congress, re-

gardless of the effects of the importation upon the local

community’.” Maine v. Taylor, 477 U.S. at 148 n.19

(quoting Robertson v. California, 328 U.S. 440, 458

(1946) ).

The Supreme Court of Alabama correctly observed

that 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 protection-

ism, and state measures that seek to protect public health

or safety or the environment,” citing Maine v. Taylor,

477 U.S. at 148 n.19 (1986). Pet. App. 4la. Although

this Court made exactly such a distinction in Maine v.

Taylor ‘and numerous other decisions), Petitioner claims

that this Court’s decisions “expressly and conclusively re-

ject the Alabama Supreme Court’s ‘distinction’.” Brief

for Petitioner at 26-27. To the contrary, as this Court

has stated, “|t]his distinction between the power of the

State to shelter its people from menaces to their health

or safety. . ., even when those dangers emanate from

interstate commerce, and its lack of power to retard,

burden or constrict the flow of such commerce for their

economic advantage, is one deeply rooted in both our

history and our law.” H. P. Hood & Sons v. Dumond, 336

U.S. 525, 533 (1949). See also Sporhase v. Nebraska,

458 U.S. 941, 956 (1982) (“For Commerce Clause pur-

poses, we have long recognized a difference between eco-

nomic protectionism, on the one hand, and health and

safety regulation, on the other.” )

Contrary to Petitioner’s interpretation of the case,

Philadelphia v. New Jersey does not eliminate this funda-

mental distinction and elevate wastes to a level of con-

stitutional protection unique among dangerous articles.

Philadelphia v. New Jersey merely holds that state meas-

ures discriminating against out-of-state waste are sub-

ject to the same review under the Commerce Clause as

state measures discriminating against other out-of-state

items. But Petitioner’s argument leaps from the result

in Philadelphia v. New Jersey to the conclusion that any

state restriction on the importation of waste must be

held invalid, without regard to whether the case involves

legitimate health, safety, or environmental concerns, or

merely simple economic protectionism.*°

The interpretation of the Commerce Clause advanced

by Petitioner simply cannot be reconciled with this Court’s

decision in Maine v. Taylor and numerous earlier deci-

sions of this Court recognizing the power of the states to

regulate the importation in interstate commerce of items

which pose threats to the health, safety or environment

of the state.** It is illogical to assert that while the

Commerce Clause allows a state to restrict the importa-

tion of baitfish on the grounds that some of the imported

baitfish might cause some disturbance in the aquatic

ecology, the Commerce Clause requires states to suffer

the importation of unlimited volumes of hazardous wastes.

These wastes, without dispute, “are inherently danger-

ous to human health and safety and to the environment”’

and consist of “wastes which contain poisonous and cancer

causing chemicals and which can cause birth defects,

*6 This Court rejected New Jersey’s argument that its ban on out-

of-state garbage was analogous to health-protective measures which

this Court had repeatedly upheld, distinguishing the quarantine

cases as involving restrictions on articles whose “very movement

risked contagion and other evils,” from the ordinary garbage where

there was “no claim here that the very movement of waste into or

through New Jersey endangers health.” Philadelphia v. New Jersey,

437 U.S. at 628-29. In contrast, the trial court in this case found

that “[t}/he 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.” Pet.

App. 62a.

27 See cases cited supra n.23.

genetic damage, blindness, crippling and death.” Pet.

App. lLla.

The Commerce Clause “does not elevate free trade above

all other values.” Maine v. Taylor, 477 U.S. at 151. The

Commerce Clause places the value of free trade in goods

above a state’s parochial interest in protecting or favor-

ing its own local producers; it does not place the “value”

of “free trade” in poisonous waste materials which cause

cancer, birth defects, genetic damage, blindness, crippling

and death, for the purpose of burying such materials in

the ground,”* above the state’s responsibility for pro-

tecting the health and safety of its citizens and the in-

tegrity of its environment. Alabama has a reason, apart

from the origin of the wastes, to control importation of

the wastes—they are wastes which are “inherently dan-

gerous to human health and safety and to the environ-

ment.” Pet. App. 1la.

III. Alabama’s Differential Fee Structure, As A Measure

To Control The Movement Into The State Of Dangerous

Waste Materials, Is A Valid Exercise Of The State’s

Police Power Under Maine v. Tayior And The Older

Quarantine Cases.

A. On the Basis of the Health, Safety, and Environ-

mental Dangers Documented in This Case, Alabama

May Control the Movement of Hazardous Waste

Into the State, While Providing for Regulated Dis-

posal Within the State of Its Own Waste.

Under the principles established in the quarantine

cases and reaffirmed in Maine v. Taylor, Alabama may

control the movement of dangerous waste into the state,

just as Alabama and other states control the importation

of other dangerous items.” Petitioner and its amici

28 Due to the significant public health and environmental dangers

created by land disposal of hazardous wastes, Congress has declared

that such disposal “should be the least favored method for managing

hazardous wastes.” 42 U.S.C. § 6901(b) (7).

2° This Court’s earlier cases recognizing the power of the states

to control movement of dangerous articles into the state are not

argue, however, that the rationale of the quarantine cases

does not apply, asserting that the states in those cases

also “banned” the equivalent in-state dangerous items. As

expressed by the Solicitor General, “Alabama’s Additional

Fee is not a quarantine statute because Alabama does not

preclude the disposal of hazardous waste that is gen-

erated within its borders.” Brief of U.S. at 25; see also

Brief for Petitioner at 31 n.21. It is not clear just what

Petitioner or the Solicitor General think the states in

these cases did (or still do) about their own diseased

livestock, animal carcasses or other noxious items, but it

is unlikely that those states dealt with the problems by

commanding, for example, that cows not get sick or die

within the state. These States required (and states still

generally require) that dangerous items within the state

be disposed of, or managed, in accordance with the state’s

regulatory requirements, just as Alabama requires that

its own hazardous waste be disposed of or managed in

accordance with Alabama’s regulatory requirements.

Indeed, this is clearly shown by Clason v. Indiana, 306

U.S. 489 (1939). The Solicitor General erroneously char-

acterizes Clason as “rejecting [a] Commerce Clause chal-

lenge to [a] statute restricting transport of dead animals,

noting that the State has a similar scheme respecting in-

state carcasses.” Brief of U.S. at 24 (emphasis added).

In fact, Mr. Clason was convicted by Indiana of trans-

porting what was apparently an in-state dead horse out

of that State to Illinois. 306 U.S. at 440. Clason did not

note “that the State has a similar scheme respecting in-

state carcasses’; the entire case involved the application

of that in-state scheme, which required and regulated

relics of the past with no modern relevance. These cases establish

the constitutional framework within which states control health,

safety and environmental risks by controlling the importation of

dangerous articles. See, e.g., Mendicoa v. Wyoming, 780 P.2d 1346

(Wyo. 1989) (cattle); Winkler v. Colorado Dep’t of Health, 193

Colo. 170, 564 P.2d 107 (1977) (pets for commercial sale) : Wyant

v. Figy, 340 Mich. 692, 66 N.W.2d 240 (1954) (bees): State v.

Lovelace, 228 N.C. 186, 45 S.E. 2d 48 (1947) (cattle).

disposal, within Indiana, of in-state items of a type which

the State unquestionably could prohibit from being

brought into the State.

Although not an issue in the case, both the Indiana

Supreme Court and this Court recognized that the State

plainly could prohibit the movement of such items into

the State. Clason v. Indiana, 306 U.S. at 442 & n.2;

Clason v. Indiana, — —Ind. : , 17 N.E.2d 92, 94

(1938). The Indiana court and this Court both recog-

nized that, for purposes of analyzing a state measure un-

der the Commerce Clause, there is no difference between

a prohibition against movement out of the state and a

prohibition of movement into the state. The Indiana

Court framed the question as:

“!W]hether the state, in the exercise of its police

power, may prohibit the interstate transportation of

dead animals by a plan that allows intrastate trans-

portation by its licensees under circumstances that

may result in the profitable handling of such articles

within the state.”

Ind. at , 17 N.E.2d at 94 (emphasis added).

This Court addressed the question as framed by the ap-

pellant:

“!Whether] the Indiana Dead Animal Disposal Act

of 1937 was valid as a reasonable regulation or quar-

antine and not invalid as a discriminatory prohibi-

tion of interstate commerce in commodities recognized

as legitimate articles of intrastate commerce.”

306 U.S. at 443.

The Indiana statute upheld in Clason facially dis-

criminated—it blocked commerce at the state line in ar-

ticles which posed a risk to public health, while providing

for commercial disposal within the state of identical in-

state articles. The case can hardly be dismissed as “old”

and of no modern relevance; the current version of the

Indiana provision is essentially identical. See Ind. Code

Ann. § 15-2.1-16-15. But under the Commerce Clause

standard urged upon this Court by Petitioner and its

amici, this Indiana statute, previously upheld by this

Court, would be struck down for blocking interstate com-

merce in articles which are permitted to be disposed of

- within that State.*

Far from supporting the argument that Alabama can-

not keep out out-of-state hazardous waste because it al-

lows disposal of its own such waste, Clason is instructive

because the case shows the in-state side of the quarantine

cases—the states provide for regulated disposal within

the state of in-state dangerous items, while controlling

the importation of more such dangerous items from out-

side the state.

Just as Alabama requires in-state hazardous waste to

be disposed of in accordance with the State’s requirements

governing such disposal, while controlling the importation

of additional hazardous waste, most, if not all, states re-

quire regulated disposal of in-state diseased or dead ani-

mals, plants infected with disease or insect pests, germ-

infected articles or other items which might be harmful

to health, safety or the environment, while prohibiting the

importation of more such items into the state. The con-

struction of the Commerce Clause advanced by Petitioner

and its amici questions the constitutionality of all such

state measures.*' If the Solicitor General is correct in

*° The Indiana statute in Clason required in-state dead animals,

an unavoidable by-product of livestock production, to be either dis-

posed of on-site in accordance with the State’s requirements regu-

lating the method of disposal, or transported in a regulated manner

to permitted, regulated commercial disposal facilities. 306 U.S. at

440-42 & n.1. Similarly, Alabama requires in-state hazardous waste,

to some extent an unavoidable by-product of industrial production,

to be either disposed of on-site in accordance with Alabama’s re-

quirements regulating the method of disposal, or transported in

a regulated manner to permitted, regulated commercial disposal

facilities.

*! Georgia, for example, prohibits the movement of dead animals

into the State, except by special permit or for research purposes.

Ga. Code Ann. § 4-5-8. Under the Commerce Clause “rule” ad-

vanced by Petitioner and the Solicitor General, this statute would

his assertion that “out-of-state articles of commerce must

be treated the same as in-state articles of commerce when

they are indistinguishable” (Brief of U.S. at 27), the

only state which could constitutionally forbid the impor-

tation of diseased animals would be one whose cows never

got sick.

It appears beyond question that a state may prohibit

the importation of diseased livestock, even if similarly

diseased livestock within the state may be treated with

the hope that they may be cured, rather than being im-

mediately destroyed and disposed of. But under the

Solicitor General’s “comparable treatment rule” (the only

exception to which is “when the articles are dissimilar” )

(Brief of U.S. at 27, emphasis in original) a state would

be without the power to restrict the importation of large

numbers of contagious, diseased animals if there were

any similarly sick animals within the state.

The “different threat” and similar /dissimilar distinc-

tion drawn by Petitioner and the Solicitor General is

based on an erroneous interpretation of the basis of this

Court’s decision in Maine v. Taylor. States may prohibit

the importation of sick cows, even though there are sim-

ilarly sick cows within the state; the reason, apart from

the origin of the out-of-state cows, is that they are sick.

Alabama does not prohibit the importation of diseased

Florida cattle because they are diseased Florida cattle, it

does so because they are diseased Florida cattle. Like-

wise, Alabama does not control the importation of out-of-

state hazardous waste because it is out-of-state hazardous

waste, Alabama does so because it is out-of-state hazard-

ous waste. Apart from its origin, it is hazardous. Like

diseased livestock, animal carcasses, baitfish infected with

parasites, germ-infested rags or other harmful items, the

reason, apart from origin, for discrimination is the added

danger to the state of having more such items present,

be invalid on the grounds that similarly dead animals occur and are

disposed of within Georgia.

even if the state already has within its borders some

similarly dangerous items.

B. The Quarantine Cases Were Decided on Principles

Which Form the Basis for This Court’s More Recent

— And Are Indistinguishable From This

ase.

The quarantine cases cannot be dismissed as having

been decided on the basis of some antiquated notion that

the articles involved were not “legitimate articles of com-

merce.” This Court rejected that proposition in 1902,

calling it “confusion of thought which has given rise to

the misconception of the authorities.” Compagnie Fran-

caise v. State Board of Health, Louisiana, 186 U.S. 280.

390 (1902). The Court went on to state that such an

argument

“ignores the fact that these cases expressly and un-

equivocally hold that the health and quarantine laws

of the several states are not repugnant to the Con-

stitution of the United States, although they affect

foreign and domestic commerce, as in many cases

they must do in order to be efficacious, because until

Congress has acted under the authority conferred

upon it by the Constitution, such state health and

quarantine laws producing such effect on legitimate

interstate commerce are not in conflict with the

Constitution.”

186 U.S. at 391 (emphasis added).

This Court in Philadelphia v. New Jersey stated that

the numerous decisions upholding quarantine laws and

the like were distinguishable because these cases involved

articles “that required destruction as soon as possible be-

cause their very movement risked contagion and other

evils.” 437 U.S. at 628-29. Those cases, however, are not

entirely distinguishable on that basis, because they gen-

erally did not involve such articles. For example, the

cattle that were the subject of Mintz v. Baldwin did not

require destruction, nor did their very movement cause

a risk; they were reshipped back out of New York. 306

U.S. at 348; 2 F.Supp. at 701.

The Indiana statute upheld by this Court in Clason did

not prohibit the very movement of dead animals. The

statute provided for the regulated movement within the

State to the 38 in-state commercial disposal facilities.

Clason v. Indiana, —— Ind. . , 17 N.E.2d 92, 93

(1938), aff'd, 306 U.S. 439 (1939).

These cases likewise generally did not involve laws

which “simply prevented traffic in noxious articles, what-

ever their origin,” as the Court suggested in distinguish-

ing the cases. 437 U.S. at 629. And the cases did not, «s

argued by the Solicitor General here, involve measures

which applied equally to intrastate and interstate | com-

merce. The Indiana statute upheld in Clason prohibited

interstate commerce while allowing regulated intrastate

commerce. The New York measure upheld in Mintz v.

Baldwin imposed a requirement for importation which

did not apply to in-state cattle, while New York employed

a different and less burdensome requirement to control

the spread of the disease within the State. As the dissent-

ing judge in the lower court stated:

Plaintiffs contend that the October order is a bur-

den on interstate commerce and invalid for that rea-

son also. Defendant asserts that it is not discrimina-

tory and applies to all states alike outside of New

York.

But it does discriminate in favor of New York

cattle dealers and against all others. True, there is

inspection provided by state law for New York state

cattle, but there is no requirement in such inspection

that to be sold in the state they shall come from a

herd, all of whose members are free from Bang’s

disease. The October order requires this of imported

cattle but not of domestic cattle.

. * a *

(I]t is a discrimination against citizens of all other

states in favor of citizens of New York and is a

burden up n interstate commerce.

2 F.Supp. at 715 (Cooper, J., dissenting )

The majority opinion in that case, however, which this

Court affirmed, states: “There is not the slightest indica-

tion in the Supreme Court decisions that a state must

have the same regulations for inspection of diseased cattle

within its borders as it requires for those entering it.”

2 F.Supp. at 705.**

The Solicitor General mischaracterizes the quarantine

cases as employing a balancing test similar to the ap-

proach of Pike v. Bruce Church, Inc., 397 U.S. 137

(1970). Brief of U.S. at 24 and n.31. Actually, these

cases generally analyze the state measures in question in

a manner very similar to the modern “strict scrutiny”

test as applied in Maine v. Taylor. For example, in Han-

nibal & St. Joseph R.R. Co. v. Husen, 95 U.S. 465 (1878),

the Court struck down a Missouri statute prohibiting the

importation of a broadly defined class of cattle, holding

that Missouri could not exclude this whole class of cattle

“without any distinction between such as may be diseased

and such as are not.” 95 U.S. at 469. This, of course, is

just exactly what this Court would have done in Maine

v. Taylor if the harmful baitfish could have been sepa-

rated from the uninfected ones. The obvious basis for the

holding, although not stated in these terms, is that there

was a less discriminatory alternative available to serve

the State’s purpose—the discrimination could be more

narrowly drawn to better identify the cattle which posed

the risk sought to be protected against, and not unneces-

82 Mintz v. Baldwin is of significant modern-day relevance. The

state regulatory scheme upheld in that case, requiring that any

breeding cattle coming into the state originate from a herd officially

certified as free from Bang’s disease while requiring testing of in-

dividual animals for sales within the state of in-state cattle, is em-

ployed today in substantially the same form. See, e.g., Ala. Admin.

Code, Chap. 80-3-1. Under the Solicitor General’s “equal treatment

rule” for similar articles, this regulatory scheme, on its face, would

be unconstitutional. Indeed, the only judicial expression we have

found even resembling the Solicitor General’s “rule” in the context

of potentially harmful articles is the dissenting opinion in the lower

court in Mintz, which would have struck down this regulatory sys-

tem. See 2 F.Supp. at 715-16.

ily discriminate against healthy cattle. In Kimmish v.

a ae as 217 (1889), a measure which differed 4

sentially only in that it more narrowly defined the “e e

to be discriminated against was upheld, and Husen “a

tinguished, on the basis that the State had adequate y

identified those cattle which posed risks to the State ; a

there were no less discriminatory alternatives congue

available. Further, in Asbell v. Kansas, the Court uphe

a State measure prohibiting importation of diseased owt

tle where the cattle were inspected to identify those whic

were diseased; unlike the problem baitfish in Maine v.

Taylor, disezsed cattle could be identified by inspection.

ther cases, the Court upheld restrictions on inter-

an onan only after finding that the state had a

legitimate reason for the restriction, and that the —

did not unnecessarily restrict nondangerous ~ on Ra

as healthy livestock, which could be separately oe —_—

that is, that there were no reasonably available a ao

tives. See, e.g., cases cited supra n.23. In one case =

ingly similar to Maine v. Taylor in this respect, 2 our

upheld against a dormant commerce clause challenge a

restriction on the importation of all alfalfa hay from -

tain states, the purpose of which was to prevent the

spread of the alfalfa weevil, on the grounds that it was

not feasible to inspect the hay to identify which hay was

infected with the eggs of this pest. (The Court went on

to find the measure preempted by a federal ge :

Oregon-Washington R. & Nav. Co. v. Washington, 2

U.S. 87 (1926).

38 This Court in Asbell v. Kansas did not uphold the Kansas wd

on the grounds that some similar requirement was yey on in =

state movement of cattle; the Court upheld the law _ es

Commerce Clause does not preclude a state from contro 7 oe

movement of diseased cattle into the state, irrespective o poe

different and less burdensome measures the state may + od yr

the state. Mintz v. Baldwin, 2 F.Supp. 700, 705 (N.D.N.| ‘ a Jed

289 U.S. 346 (1933). (“There is not the slightest indication in ~<a

Supreme Court decisions that a state must have the same 14 “f

tions for inspection of diseased cattle within its borders as it re

quires for those entering it.”)

A eee

The Court was not engaging in a balancing test in

these cases, and the regulatory measures involved gener-

ally were not “evenhanded.” Just as in Maine v. Taylor,

the Court in these older cases accepted that, if the state

had a legitimate purpose, the state could restrict the im-

portation in interstate commerce of the articles against

which the state’s purpose was to protect. And just as in

Maine v. Taylor, the Court considered whether the state’s

purpose was being accomplished without unnecessarily

discriminating against nondangerous items. The stan-

dard employed by this Court to judge the validity of state

measures discriminating against interstate commerce—

that the measures in question advance a legitimate state

purpose which cannot be adequately served by reasonable

nondiscriminatory alternatives—is not a new standard.

It is a succinct expression of the reasoning employed by

the Court in the numerous cases upholding legitimate

exercises of the states’ police power, or distinguishing

invalid measures from those which were legitimate, over

the almost century and a half that this Court has been

reviewing such state measures under the Commerce

Clause. This standard does not displace the quarantine

cases, it summarizes them.

C. Petitioner's “Different Threat” Theory and the

Solicitor General’s “Comparable Treatment Rule”

Are Based on an Erroneous Interpretation of This

Court’s Decision in Maine v. Taylor.

Petitioner and the Solicitor General imaginatively at-

tempt to distinguish Maine v. Taylor from this case and

the earlier quarantine cases by setting up a strawman

“dispositive fact”—that Maine was attempting to ex-

clude a new threat, one different in kind from any prob-

lem already existing in the State. They argue the “dis-

positive fact” was that at least one or more of the para-

sites had not been previously found in Maine. The error

of this interpretation of that case is made clear simply by

hypothetically assuming contrary facts and considering,

under the Court’s analysis, whether these facts would have

changed the outcome of the case. Assume, for example,

that the parasites and non-native species had been fairly

well established in Maine, and that Maine had an in-state

program to control and limit the extent of environmental

damage by regulating the growth and spread of the dam-

age. Maine clearly would have a legitimate interest in

controlling the growth of the problem. Prohibiting the

importation of baitfish which increased the danger would

serve a legitimate state purpose, because Maine’s efforts

to control the damage within the State would be futile if

it could not control the importation of large numbers of

additional harmful baitfish. Notwithstanding the fact

that the imported baitfish were in all respects identical

to those harmful baitfish within the State, Maine would

have a reason, apart from origin, for prohibiting their

importation—these additional problem fish would increase

in degree the environmental damage the State sought to

limit, and frustrate the State’s efforts to control the prob-

lem existing within the State. The reason, apart from

origin, is the environmental danger posed by the imported

baitfish, not some difference between these baitfish and

those already within the State.

In this hypothetical scenario, the “available nondis-

criminatory alternative” test would be applied just as it

was applied by this Court in the case. The Court would

consider whether there were reasonably available alterna-

tives which would allow Maine to exclude only the harm-

ful baitfish without the necessity of excluding all baitfish.

But under Petitioner’s “different threat” theory, or the

Solicitor General’s “comparable treatment rule,” Maine

would have an available nondiscriminatory alternative,

namely: to allow unlimited importation of the indistin-

cuishable out-of-state baitfish, then nondiscriminatorily

try to control the enormous additional problems within the

State in the same manner that the State was employing

to try to cope with the limited damage it already had.

Although this Court found it to be “of little relevance

that fish can swim directly into Maine from New Hamp-

shire.” 477 U.S. at 151, under the standard proposed by

Petitioner and the Solicitor General this possibility would

be very relevant. If the validity of Maine’ r

the importation of baitfish ceed on nage et

similarly harmful baitfish within the State, the Maine

statute would immediately become unconstitutional when

a harmful fish swam into Maine. There would no longer

be a “different threat.” Because imported baitfish would

no longer be dissimilar to in-state harmful baitfish. the

Solicitor General’s “equal treatment rule” would require

that Maine allow uncontrolled importation of more harm-

ful baitfish. The continued validity of the Maine statute

would depend entirely on the nonoccurrence of a possi-

bility the Court found to be of little relevance.

The analysis of the Court in Maine v. Taylor produces

the same conclusion even if it is assumed that the out-

of-state baitfish were indistinguishable from problem

baitfish already within the State. Maine’s power to ban

the importation of baitfish rested on the threat, not on

some different nature of the threat. This is consistent

with this Court’s earlier decisions considering prohibi-

tions on the importation of diseased livestock and other

dangerous articles.** These cases did not discuss much

less turn on, whether the particular harm was alread

present in the state. If such a pointless distinction ams

valid, many existing state health, safety and environ-

mental regulations would be invalid on the grounds that

they merely guard against increasing the degree of

dangers, rather than against dangers different in kind.

D. A Standard of General Application, Based on the

Construction of the Commerce Clause Argued by

Petitioner and the Solicitor General, Would Invali-

date Scores of Existing State Health, Safety, Envi-

ronmental and Quarantine Laws and Regulations,

Many of Which Are Identical or Indistinguishable

rm Pres an Previously Upheld by This Court.

> Commerce Clause standard urged upon this

by Petitioner and the Solicitor General se Sharh

far broader than the context of state measures to control

dangerous wastes. A standard of general application

*4 See cases cited supra n.23.

based on the construction of the Commerce Clause argued

by Petitioner and the Solicitor General, would invalidate

scores of existing state health, safety, environmental and

quarantine laws and regulations, many of which are

identical or indistinguishable from measures previously

upheld by this Court.** The only way to hold for Peti-

tioner in this case without invalidating state measures

which control the spread of other forms of “disease, pes-

tilence and death”,** is to carve out a special, unique rule

under the Commerce Clause for the waste involved in

this case. Such meticulous carving is more appropriately

the role of Congress than of a Court enunciating con-

stitutional principles.

E. This Additional Fee Is Constitutionally Indistin-

guishable From any Other Form of Regulatory Con-

trol Over Importation of Articles Which Spread

Disease, Pestilence and Death.

This Court’s decisions establish that states may im-

pose such restrictions on interstate commerce as may be

appropriate for public health and environmental pro-

tection. Petitioner and amici attempt to distinguish

*3 Examples of state statutes which appear to facially violate the

Solicitor General’s “equal treatment rule” include: Ark. Stat. Ann.

§ 2-22-11 (controlling importation of bees); Conn. Gen. Stat. Ann.

$ 22-325 (poultry); id. § 22-308 (cattle and goats); Del. Code Ann.

tit. 3, § 7304 (cattle) ; Ga. Code Ann. § 4-4-119 (horses) ; id. § 4-5-8

(dead animals); Idaho Code § 25-214A (livestock); Mass. Gen.

Laws Ch. 129, §14D (hogs); R.J. Gen. Laws §§ 4-4-19, 4-5-7

(animals) ; Vt. Stat. Ann. tit. 6, § 1461 (animals).

36 As this Court stated in Bowman v. Chicago & Northwestern

R. Co.:

“Doubtless the States have power to provide by law suitable

measures to prevent introduction into the States of articles of

trade, which, on account of their existing condition, would bring

in and spread disease, pestilence, and death .... The self-

protecting power of each State, therefore, may be rightfully

exerted against their introduction, and such exercises of power

cannot be considered regulations of commerce prohibited by the

Constitution.”

125 U.S. at 489.

Maine v. Taylor and the older quarantine cases by argu-

ing that the Additional Fee is merely a tax, and not a

ban on importation. This Court’s prior decisions uphold-

ing laws restricting commerce for health and environ-

mental reasons have not always involved complete pro-

hibitions on importation. For example, the New York

measure upheld in Mintz v. Baldwin allowed cattle to be

brought into the state for grazing, feeding, or slaughter.

The measure was designed to control the risk by prevent-

ing cattle from moving into breeding or dairy herds,

where the risks were greater. As the Court has stated,

such measures “must vary with the nature of the disease

to be defended against.” Smith v. St. Louis & South-

western R. Co., 181 U.S. at 257. “It is the character of

the circumstances which gives or takes from a law or

regulation of quarantine a legal quality.” Jd., 181 U.S.

at 258. Under the circumstances of this case, an economic

disincentive to the importation of waste is an appropriate

measure to control the level of risk to which the State

is exposed.

The use of an economic disincentive to influence and

regulate behavior is not a novel idea, and is especially

appropriate in the area of environmental regulation be-

cause it both allows for and forces a transition to alter-

natives while allowing the greatest flexibility in develop-

ing alternatives to the discouraged activity. For example,

in sections 4861-62 of the Internal Revenue Code, Con-

gress has implemented an economic disincentive in the

form of an excise tax on ozone-depleting chemicals. The

excise is scheduled to increase annually to ratchet up

the disincentive, thereby increasing the incentive to find

and use alternatives. Similarly, the “Gas Guzzler” excise

tax in section 4064 of the Jnternal Revenue Code imposes

a deterrent levy of up to $7,700 (as doubled in 1990) on

cars failing to meet specified fuel economy standards.

These measures, like the Additional Fee, are not designed

primarily to produce revenue; the ultimate objective is

that the environmental measures work and progressively

produce less revenue.*

Maine v. Taylor and the older quarantine cases in-

volved the spread of harmful living organisms—para-

sites, smallpox virus, insects, germs in diseased animals

or decayed meat. These living organisms multiply on

their own; one germ becomes millions of germs, and the

millions of germs cause the harm sought to be avoided.

Drums of hazardous waste, of course, do not reproduce.

It is not necessary, therefore, to exclude the first drum

in order to control the potential harm of millions of

drums. The risk created by hazardous waste and other

similarly dangerous waste materials is proportional to the

volume of such waste materials present (J.A. 18, 22, 51),

and may be controlled by controlling that volume.** Ob-

viously, 40,000 truckloads of hazardous waste in 1989

are far more threatening than four to six thousand

truckloads of in-state waste. Pet. App. 62a. The argu-

ment that the rationale of the quarantine cases does not

apply because Alabama has not totally banned the im-

37 Economic incentives and disincentives are highly desirable, in

appropriate contexts, as regulatory measures. This form of regu-

lation allows the greatest flexibility for experimentation and innova-

tion in the development of a variety of alternative methods to meet

the goals of the regulatory action, as opposed to simply requiring

industry to adopt the choice of a regulatory agency. The idea, of

course, is that Adam Smith’s “invisible hand,” given the incentive,

is more likely than the strong arm of government to ultimately

produce the optimum solution. In spite of this, the amicus brief of

the American Trucking Associations urges this Court to strip the

States of all power to use this form of regulation, even though the

States clearly would have the power to accomplish the same purposes

by regulations requiring specific actions chosen by state regulators.

Brief for American Trucking Associations at 12.

38 As the Solicitor General recognizes, “Alabama’s legitimate con-

cerns relate to the volume of hazardous waste disposed of within the

State, not to its source.” Brief for U.S. at 19 (emphasis in original).

Alabama is not controlling the importation of hazardous waste be-

cause of its source; the reason, apart from the origin of the waste,

is that these large volumes of hazardous waste are dangerous.

portation of such waste fails to take into account this

significant distinction.

Although hazardous waste is not directly analogous to

disease organisms in that it takes only one germ to start

an epidemic, the release of either may cause disease,

pestilence and death, and thus the reasoning of the cases

which allow discrimination against interstate commerce

applies equally to poisons. In either case, the State’s

interest in protecting public health, safety, and the en-

vironment allows controls on interstate commerce. The

fact that Alabama’s restriction is in the form of an

economic disincentive, which allows and encourages a

transition, rather than a complete ban which might cause

temporary inconveniences to the operations of some in-

dustries, does not alter this conclusion.

IV. Alabama’s Differential Fee Structure Serves A Legiti-

mate State Purpose Which Cannot Be Adequately

Served By Any Nondiscriminatory Alternative.

A. Alabama’s Differential! Fee Structure Is Demon-

strably Justified by Valid Factors Unrelated to

Economic Protectionism.

Discriminatory statutes are struck down “unless the

discrimination is demonstrably justified by a valid factor

unrelated to economic protectionism.” Wyoming v. Okla-

homa, U.S. , 117 L.Ed. 2d 1, 22 (1992) (em-

phasis added). This Court has defined economic protec-

tionism as “ ‘measures designed to benefit in-state eco-

nomic interests by burdening out-of-state competitors.’ ”

Wyoming v. Oklahoma, 117 L.Ed. 2d at 22 (quoting New

Energy Co., 486 U.S. 269, 273). The legislative findings

accompanying the Act, the trial court’s findings and the

record in this case clearly establish that Alabama’s dif-

ferential fee structure was designed to protect the health

and safety of the State’s citizens and the integrity of

the environment. The health, safety, and environmental

dangers resulting from landfilling these wastes are a

valid factor, unrelated to economic protectionism, justi-

fying Alabama’s restriction on the importation of the

wastes.*”

The transportation of hazardous waste to landfills,

where the wastes remain hazardous forever, merely

amounts to moving a problem from one place to another,

and postponing the time when the social, environmental

and economic costs of finally dealing with the problem

must be faced. Transporting such waste from one state

to a landfill in another also shifts these social, environ-

mental and economic costs to a different set of voters and

taxpayers. The bulk of Petitioner’s business consists of

shifting these problems from other states to Alabama, and

tranferring to Alabama the perpetual economic and social

costs.

Petitioner argued below that Alabama need not worry

about the perpetual risks to the state of holding in its lap

what is probably the largest collection of dangerous ma-

terials of this type ever assimilated in one place in the

history of mankind, simply because the State may at-

tempt to recover under federal law future clean-up costs

from those responsible for the waste.*’ Aside from the

fact that this argument ignores the question of whether

the social and environmental consequences can ever be

measured in dollars, Petitioner failed to point out the

exception which swallows the general rule of joint and

several liability. The federal statute cited as creating

liability, 42 U.S.C. § 9607, also completely absolves from

** Far from being designed to benefit in-state economic interests,

the Act itself anticipates significant adverse local economic effects.

Section 7 of the Act (Pet. App. 110a-llla) commits the State to

make payments to local government bodies to offset the adverse

economic impact of a reduction in the volume of waste disposed of

at Emeile. As shown by a Livingston University study (C.R. 471-

508) Petitioner’s waste disposal business is the driving force in the

regional economy of west-central Alabama.

** This assumes that the waste generators can be identified. But

in the case of out-of-state waste which has moved through brokers,

the identity of the generator and the source of the waste is unknown

even to Petitioner. See supra n.24.

ee eet

liability the owner or operator of a facility, the gen-

erators of the hazardous waste, all other potentially liable

persons where clean-up is made necessary due to acts of

third parties or acts of God, such as tornadoes or earth-

quakes. 42 U.S.C. § 9607(b). In the event of a major

natural disaster, no one would be liable.

Petitioner argues that Alabama’s fee structure amounts

to simple economic protectionism simply because Alabama

hazardous waste generators may dispose of their wastes

in Alabama at a cost lower than the cost to out-of-state

waste generators to dispose of their wastes in Alabama. —

Brief for the Petitioner at 26. Simliarly, if Alabama

provides for the management within the State of diseased

plants or animals, Alabama producers may be advantaged

relative to producers in states which fail to make such

provision. In either case, any competitive disadvantage

is not caused by the state which has provided for the

needs of its own industry, it is caused by the failure of

the disadvantaged producer’s state to permit or provide

for the infrastructure necessary to that producer’s oper-

ations. The failure of one state to permit management

within the state of its own dangerous articles does not

compel another state to take up its burden.

Maine baitfish producers undoubtedly prospered as an

incidental effect of Maine’s actions and this Court’s de-

cision. And Alabama industry may benefit relative to

industries in states which refuse to accept their respon-

sibility for permitting the development of waste dis-

posal infrastructure, as an incidental effect of Alabama’s

efforts to protect its environment and the health of its

citizens. These incidental effects do not transform clearly

legitimate measures to protect against grave dangers into

forbidden economic protectionism.

Petitioner and amici argue that it is economically more

efficient to ship waste a short distance across state lines

than a longer distance within a state. This is obviously

true, but it explains only a tiny fraction of the movement

of out-of-state waste to west-central Alabama. If the

Emelle facility were simply receiving most or all of Mis-

sissippi’s waste, and perhaps some from other adjacent

or nearby states, it is unlikely that Alabama would have

ever felt the need to enact legislation of this kind. But

“economic efficiency” and “natural market forces” entirely

fail to explain why hazardous waste is hauled all the way

across the continent to Alabama. The level of traffic in

hazardous waste is not due to the value of commerce

in the waste. It is due instead to the fact that other

states force such waste to be exported due to the negative

value, the risk, of having such waste within the state, and

the fear that any attempt at in-state disposal will result

in an inability to protect the state from large-volume im-

portation of more hazardous waste.*' Political forces,

not market forces, drive this flow of hazardous waste.

The argument that citizens of other states do not elect

Alabama’s officials has another side—Alabama citizens,

who are bearing the burden of those other states’ hazard-

ous waste, do not elect those champions of the environ-

ment in other states who refuse to provide for disposal

of their own such wastes. “Send it to Alabama” is far

easier to implement than a responsible waste manage-

ment policy.”

41 One of the greatest obstacles to the development of new facili-

ties in other states is the understandable fear, arising from overly

broad interpretations of Philadelphia v. New Jersey, that any effort

to manage their own waste will result in litigation which may leave

the local citizens powerless to protect themselves from being buried

in hazardous waste from other states. Under the interpretation of

the Commerce Clause advanced by Petitioner and its supporters in

this case, it would be a foolish state indeed that would issue a permit

for any new commercial hazardous waste disposal facility.

42 The fact that Alabama has tolerated the landfilling in the State

of large volumes of out-of-state hazardous waste in past years, and

only acted to slow the flow somewhat after the volumes had become

overwhelming, indicates that the interests of out-of-state hazardous

waste generators are in fact quite well represented in Alabama.

Petitioner, its numerous employees and local businesses serving

Petitioner and its employees are a significant in-state economic in-

terest adversely affected by any reduction in the volume of hazardous

waste imported for landfilling.

ee es

Similarly, industries in other states find it much more

palatable to argue in this Court, as amici, for their

“right” to send their waste to Alabama cheaply, than to

be environmental villains at home by suggesting that their

own state permit the infrastructure necessary for them

to operate. Alabama has implemented waste minimiza-

tion programs to control and reduce the in-state pro-

duction of hazardous waste, but these efforts are futile

if the State continues to be overwhelmed by additional

waste from outside the State. The only means available

to Alabama citizens to protect themselves from the “send

it elsewhere” waste management policies of other states

is to make Alabama a less attractive alternative than a

responsible state waste management policy.

Petitioner and its amici argue that Alabama citizens

enjoy the products of other states, the production of which

may produce pollution such as air or water discharges

in those states, but wish to avoid the problems of the

hazardous waste generated by that production. Of course,

those states are free to control, to whatever extent they

desire, those air and water pollution problems. Many of

those states are also controlling the hazardous waste pro-

duced by requiring that it all be sent out of the state.

That an Alabama citizen buys a car does not mean that

he must be forced to bear the burden of all of the haz-

ardous waste generated in the production of all of the

cars sold in the entire nation, simply because citizens

of other states wish to avoid the problem entirely.

*8 With imported hazardous waste accounting for approximately

ninety percent of all hazardous waste landfilled in Alabama, the

State’s efforts to reduce the generation of hazardous waste within

the State by technical assistance in developing process modifications

and other similar means (see R.T. 260-61; 287-88) can have no

significant impact in reducing the dangerous volumes of hazardous

waste accumulating in the State. If Alabama were able to reduce

in-state hazardous waste generation by one-half, this would amount

to a mere five percent reduction in the landfilling of hazardous waste

in the State,

Disposal capacity for Alabama’s waste is not an issue

in this case. Petitioner’s Vice President of Operations

for the Southern Region, Rodger Henson, testified that

the Emelle facility alone had capacity for at least an-

other 100 years of operations, without a reduction in

the rate of accumulation. J.A. at 9. And there is no

shortage of other potential locations. The chalk forma-

tion which Petitioner claims to be particularly well suited

for locating such facilities is extensive across Alabama

(and several other states). J.A. 52; R.T. 471-72, 622.

Even with no restrictions on the rate of accumulation of

waste at the Emelle facility, there is no imminent (or

even foreseeable) shortage of existing capacity for the

disposal of Alabama’s own hazardous waste, and no short-

age of other potential sites for the disposal of the State’s

waste. The argument that Alabama is simply “conserv-

ing” a place to dispose of its own hazardous waste is

factually erroneous.

Petitioner and its amici seek to analogize Alabama’s

restriction on the dumping of out-of-state hazardous waste

at the Emelle facility to the hoarding of a natural re-

source for in-state use. But that facility is not a “nat-

ural resource.” It is an engineered, artificially created,

man-made facility ‘‘ which exists and operates solely at

the pleasure of the State of Alabama. Unlike coal, or

oil or natural gas, the Emelle facility did not simply

happen to occur in Alabama as an accident of nature.

The facility was created only because the State allowed

it to be created, and continues to exist and operate only

because the State finds it to be in the State’s own in-

terest to provide for the disposal of its own hazardous

waste. Petitioner’s “right” to bury hazardous waste there

is limited to the right to bury only such waste as the

‘4 Petitioner’s expert witness and long-time consultant William

Brummond testified that a hazardous waste landfill could be engi-

neered to meet regulatory requirements in most if not all states.

J.A. 142-43. As explained in the amicus brief submitted by the

States of Ohio and Kentucky, there are few locations where a facility

cannot be designed to meet regulatory requirements.

ee ee nd

ee eo eel a ee ee ee ee ee eee eee

—

State may find to be in the State’s interest to permit.

The Emelle facility is not a natural resource; it is an

activity, or land use, which poses grave dangers to the

State. The State may tolerate this activity only to the

extent that it serves the State’s purpose, and the State

may limit the activity to that extent.

B. Alabama’s Legitimate Purpose Cannot Be Ade-

— Served by Any Nondiscriminatory Alterna-

Under this Court’s precedents, a state measure re-

stricting the importation of out-of-state articles is valid

under the Commerce Clause where the measure serves a

legitimate local purpose that cannot be adequately served

by reasonable nondiscriminatory alternatives.“ New

Energy Co., 486 U.S. at 728: Maine v. Taylor, 477 U.S.

at 140. It cannot be credibly disputed that Alabama has

a legitimate interest in controlling the significant health

and environmental risks created by the landfilling of

enormous quantities of highly dangerous wastes while, at

the same time, providing for the regulated disposal of

the State’s own dangerous waste. The differential fee

structure is designed to serve this purpose by reducing

the volume of such waste imported into the State for

landfilling, without also causing Alabama’s own waste

to be sent to other states for disposal. The issue raised

by Petitioner in this case is whether the final require-

ment of the test—that the State’s purpose cannot be

served by available nondiscriminatory alternatives—com-

pels every state to choose between either refusing to

permit disposal within the State of its own hazardous

waste, or accepting its responsibility to manage its own

waste at the cost of bearing the perpetual burden of

serving as the permanent burial ground for the hazardous

waste of those states which choose to avoid their own

problems.

“This is perhaps just another way of saying that what may

appear to be a ‘discriminatory’ provi.ion in the constitutionally

prohibited sense—that is, a protectionist enactment—may on closer

analysis not be so.” New Energy Co., 486 U.S. at 278.

Petitioner contends that Alabama’s purpose to reduce

the amount of hazardous waste coming into the State for

burial could be served as well by imposing an equal fee

on disposal of both in-state and out-of-state waste. It

the State’s purpose included an attempt to encourage its

own hazardous waste to be sent out of the State, Petition-

er’s argument would be correct. But Alabama’s purpose

is not to force responsibility for its own waste disposal

burdens on citizens of other states. The State’s purpose

in enacting the differential fee structure is to accept the

State’s responsibility for dealing with its own waste,

while protecting its citizens and environment from the

risks caused by the importation of large volumes of

additional wastes.

An equal fee, at any level, would necessarily fail to

serve the State’s purpose. An equal fee high enough to

provide any significant deterrent to the importation of

hazardous waste for landfilling in the State would

amount to an attempt by the State to avoid its responsi-

bility to deal with its own problems, by tending to cause

in-state waste to be exported for disposal. An equal fee

not so high as to amount to an attempt to force Ala-

bama’s own problems to be borne by citizens of other

states would fail to provide any significant reduction

in the enormous volumes of imported hazardous waste

being dumped in the State. At the point where an equal

. fee would become effective to serve the State’s purpose

_in protecting public health and the environment from

uncontrolled volumes of imported waste, that equal fee

would also become an avoidance of the State’s responsi-

bility to deal with its own waste problems.

Under Petitioner’s theory of the Commerce Clause, the

State’s purpose as described above becomes two mutually

exclusive goals. A state can accept responsibility for

providing for the disposal of its own waste, in which

case it must then also accept the burden and inherent

dangers of receiving all such wastes from all other states.

Or the state can protect its citizens and environment

from burial within the State of overwhelming volumes of

waste, by abdicating its responsibilities and trying to

force its own waste on other states. Given such a choice,

the inevitable result is clear. States will refuse to permit

the disposal within the state of their own wastes. Those

states which do permit waste disposal will be increas-

ingly overwhelmed by volumes of out-of-state waste. In

fact, this situation has already developed ** as a result

of the holdings of several lower federal courts, relying

on Philadelphia v. New Jersey to summarily strike down

any state measure controlling “waste.”

Vv. The Public Interest In The Safe Management Of Haz-

ardous Waste Would Be Better Served By Recognizing,

Rather Than Destroying, The Ability Of The States

To Control The Interstate Movement Of Hazardous

Waste. —

A. A Holding by This Court That States Are Power-

less To Control the Importation of Hazardous

Waste Would Virtually Assure That No State Will

Permit the Development of any New Commercial

Hazardous Waste Disposal Facilities.

Public awareness of the dangers associated with haz-

ardous waste has made the permitting of new hazardous

waste disposal facilities very difficult. A holding by this

Court that any such facility which is permitted must be

allowed to import and leave the local community burdened

with such additional hazardous waste as the operator of

the facility may choose would make the permitting of

any new commercial hazardous waste landfill a political

impossibility. However responsible state officials or the

public generally may wish to be about managing their

own hazardous waste, no one is so foolish as to allow their

local commuiity or their State to become the toxic waste

dump for the entire nation. A decision of this Court

** The existing imbalance, between the few states with eommer-

cial hazardous waste disposal facilities and the relatively numerous

states that effectively ban out-of-state waste by refusing to permit

such facilities within the state, is discussed at length in the amicus

briefs submitted in support of Alabama.

~*-—e

—

destroying the ability of the states to manage their own

hazardous waste and control the additional burdens of

imported waste would perpetuate and worsen the “re-

verse Balkanization’” which exists in the disposal of

hazardous waste.

Petitioner and its industry seek this Court’s assist-

ance to maximize the short-term profitability of the

few existing sites at the expense of the people in the

states where those few sites are located. The public

interest, however, as thoroughly examined and discussed

in the amicus briefs submitted by the State of South

Carolina, the States of Ohio and Kentucky, and the State

and Local Legal Center, lies in the states having the

ability to plan for and manage hazardous waste disposal.

As the capacity of the few existing sites is exhausted,

new sites will be needed. These new sites are unlikely

to be developed if allowing their development carries the

penalty of having to allow them to operate under the

rules Petitioner seeks to have enshrined as a require-

ment of the Constitution.

B. Affirming the Decision of the Supreme Court of

Alabama Will Not Adversely Affect Proper Man-

agement of Hazardous Waste.

The greatest obstacles to the development of new haz-

ardous waste disposal facilities include not only the

“NIMBY” syndrome, but also the compounding effect of

the “fear of Philadelphia” syndrome. Clarification by

this Court that States may permit the development of

hazardous waste disposal facilities free of the fear that

such development will result in the local community being

drowned in an uncontrolled flood of imported waste will

greatly facilitate, not impair, the development of ade-

quate disposal capacity to manage the nation’s waste.

The specter of “Balkanization,” and the other horribles

paraded across the briefs, are nothing more than scare

tactics, an attempt to influence the Court to base a deci-

sion on supposed “bad” consequences rather than upon

a reasoned analysis of constitutional principles. Balkan-

ization has not occurred, and is not likely to occur. It

should not be presumed that states will act irresponsibly.

Waste importing states like Alabama and South Caro-

lina have been quite accommodating considering the bur-

dens and risks transferred to them, and have sought

merely to slow the rate of increase in these burdens. In-

deed, the reasonableness of Alabama’s approach is recog-

nized even by those states that are transferring their

burdens and dangers to Alabama, as evidenced by the

amicus briefs filed in this case as well as the differential

fee-based approach in the policy recently adopted by the

National Governors Association. See supra n.19 and ac-

companying text. Congress has established the federal

policy that the exercise by the states of their traditional

police powers should be the means by which hazardous

waste management is accomplished.” Alabama’s differ-

*? As explained in detail in the amicus brief filed by the S te of

South Carolina, Congress in RCRA specifically authorized the states

to regulate the management and disposal of hazardous wastes. If a

state program meets statutory requirements, the state “is author-

ized to carry out such program in lieu of the federal program.” 42

U.S.C. 6929(b). Alabama’s program was authorized pursuant to

this federal statutory scheme in 1987. 52 Fed. Reg. 46466 (Dec. 8,

1987). EPA review of state program changes is available. 42 U.S.C.

§ 6926(e) ; 40 C.F.R. §§ 271.22-.23. Review of EPA decisions is avail-

able in the Circuit Courts of Appeals. 42 U.S.C. §6973(b). One of

the statutory requirements for authorization is that the state pro-

gram be consistent with the federal or state programs in effect in

other states. 42 U.S.C. § 6926. In regulations promulgated by EPA

under its congressionally-delegated authority, EPA treats this con-

sistency requirement as the federal statutory standard determining

the extent to which states may regulate the interstate movement of

hazardous waste; state program provisions, including fees, are au-

thorized unless the provision “unreasonably restricts, impedes, or

operates as a ban” on the interstate movement of waste. 40 C.F.R.

§ 271.4(a). EPA has expressly rejected the applicability of the

dormant Commerce Clause and determined that several state pro-

grams imposing higher disposal fees on out-of-state waste satisfied

the congressional standard governing state restrictions on inter-

state movement of waste. 54 Fed. Reg. 27170 (June 28, 1989)

(Ohio) ; 583 Fed. Reg. 16264 (May 6, 1988) (Maine): 50 Fed. Reg.

46437 (Nov. 8, 1985) (South Carolina). A holding by this Court

that a state’s differential fee structure is invalid under the der-

ential fee structure is a reasonable and valid exercise

of the State’s police power to protect the health and

safety of its citizens and the integrity of its environment,

and not violative of the Commerce Clause.

CONCLUSION

The Supreme Court of Alabama correctly followed

this Court’s decision in Maine v. Taylor. Alabama has a

reason, apart from the origin of the hazardous wastes

involved, to control importation of those wastes—they

are wastes that are “inherently dangerous to human

health and safety and to the environment.” Pet. App.

lla. The decision of the Supreme Court of Alabama

should be affirmed.

mant Commerce Clause would create he anomalous situation of

raising questions as to the validity under the dormant Commerce

Clause of state fee structures which have been specifically approved

by EPA, acting under its delegated congressional authority, as not

violating a statutory standard established by Congress in the exer-

cise of its commerce power.

As explained in the amicus brief submitted by the State of New

York, Congress also recognized the necessity of state control over

interstate movement of hazardous waste when it enacted the capacity

assurance provision of § 104(c) (9) of the Superfund Amendments

and Reauthorization Act (SARA), 42 U.S.C. § 9604 (c) (9).

BERT S. NETTLES *

ALTON B. PARKER, JR.

J. MARK HART

SPAIN, GILLON, GROOMS,

BLAN & NETTLES

2117 2nd Ave. N.

Birmingham, AL 35203

(205) 328-4100

G. DENNIS NABORS

Chief of Staff

MARK D. HEss

Legal Advisor to

the Governor

11 South Union St.

Montgomery, AL 36130

WILLIAM D. LITTLE

Assistant Attorney General

State of Alabama

11 South Union Street

Montgomery, AL 36130

Counsel for Respondent

Guy Hunt, Governor of the

State of Alabama

* Counsel of Record

WILLIAM D. COLEMAN *

JIM B. GRANT, JR.

CAPELL, HOWARD, KNABE &

Cosss, P.A.

57 Adams Ave.

Montgomery, AL 36104

(205) 241-8000

J. WADE HOPE

Legal Division

Alabama Department of

Revenue

4116 Gordon Persons Bldg.

Montgomery, AL 36104

(205) 242-9690

Counsel for Respondents

James M. Sizemore, Jr.,

as Commissioner of the

Alabama Depart» nt of

Revenue, and the Alabama

Department of Revenue

* Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.