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

No. 91-471

In the Supreme Court of the United States <5

OCTOBER TERM, 1991

CHEMICAL WASTE MANAGEMENT, INC., PETITIONER

v.

Guy HUNT, GOVERNOR OF THE STATE OF ALABAMA,

ET AL.

ON WRIT OF CERTIORARI TO

THE SUPREME COURT OF ALABAMA

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING PETITIONER

KENNETH W. STARR

Solicitor General

BARRY M. HARTMAN

Acting Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

HARRIET S. SHAPIRO

Assistant to the Solicitor General

GERALD H. YAMADA PETER R. STEENLAND, JR.

Principal Deputy ANNES. ALMY

General Counsel NANCY K. STONER

Lisa K. FRIEDMAN LOUISE F. MILKMAN

Associate General Attorneys

Counsel for Department of Justice

Solid Waste and Washington, D.C. 20530

Emergency (202) 514-2217

Response

ANGELIA SOUDER BLACKWELL

Attorney

Environmental Protection Agency

Washington, D.C. 20460

a I EIT ST IID

QUESTION PRESENTED

Whether a disposal tax that applies only to wastes

generated outside the State violates the Commerce

Clause.

(1)

a csseaesaunwenten

a ccuensepecusuounmecnoesnesssces

es spestenabeensotenseces

Argument:

I. The interstate market in hazardous waste man-

agement services is protected by the Commerce

i cestumseusunnnesovecoocs

Il. The additional fee violates the Commerce

SSE

A. Alabama’s additional fee provision discrimi-

nates against interstate commerce in haz-

ardous waste management services ................

B. Alabama has nondiscriminatory alternatives

available to effect its legitimate state pur-

I

Ill. The additional fee cannot be justified as a

EE EES EC

a avsvasuvossncecevccooscns

TABLE OF AUTHORITIES

Cases:

American Trucking Ass’ns, Inc. Vv. Scheiner, 483

Nee ecemenenes 18,

Armco Inc. Vv. Hardesty, 467 U.S. 638 (1984) _......

Asbell v. Kansas, 209 U.S. 251 (1908) 2.000000...

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

a cuccetbusonosonsoucs

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

ES

Boston Stock Exchange v. State Tax Comm’n, 429

U.S. 318 (1977) ........ OE hed

Bowman V. Chicago & N.W. Ry., 125 U.S. 465

et Ee ee

Capital Greyhound Lines Vv. Brice, 339 U.S. 542

ca aariaaeapees anaieaiis

TABLE OF CONTENTS

19, 22

17

IV V

Cases—Continued : Page Cases—Continued : Page

Clason V. Indiana, 306 U.S. 439 (1939) -................. 24 West v. Kansas Natural Gas Co., 221 U.S. 229

Commonwealth Edison Co. V. Montana, 453 U.S. | (ARSE Re aS RRR Pe Se 21

GF CED citer ititessnersnnninsenitinnaniineneneiininnanetentaimninnin 20 Westinghouse Electric Corp. V. Tully, 466 U.S.

Dean Milk Co. v. City of Madison, 340 U.S. 349 Ear een Iie ee kee 16, 17, 18

SUTIN cinibiiesckcisissksccesjicienmninsuciiseaanauamadiiedaainemanie 17 Wickard v. Filburn, 317 U.S. 111 (1942) 000.000... 25

Ensco, Inc. V. Dumas, 807 F.2d 743 (8th Cir. Wyoming Vv. Oklahoma, 112 S. Ct. 789 (1992) ........ 14, 28

ES Ce ee ene DES RIS or I ay eur Set See 21 oa

Evansville-Vanderburgh Airport Authority Dis- Constitution, statutes, regulations and rules:

trict Vv. Delta Airlines, Inc., 405 U.S. 707 U.S. Const. Art. I, § 8, Cl. 3 (Commerce Clause) .... 12, 14,

ITT ccsccicieginlieaietindaaisibabibaaidiiibeipnasinacteeeadataemantinaatataiional 21 15, 16, 17, 18, 24

Freeman V. Hewitt, 329 U.S. 249 (1946) —.............. 18 Atomic Energy Act, 42 U.S.C. 2011 et seq. .............. 2

Gibbons Vv. Ogden, 22 U.S. (9 Wheat.) 1 (1824)... 25 Clean Water Act, 33 U.S.C. 1151 et seq... oe. .. 9

Guy V. Baltimore, 100 U.S. 434 (1879) .......0.......... 17, 25 I nnn, ni 9

Hale v. Bimco Trading, Inc., 306 U.S. 375 (1939) .. 17 aE an 9

a ee te ee ee de Counetl v. Reilly, 988 20 Comprehensive Environmental Response, Compen-

time Deed tar tat daca ie corengge sation and Liability Act, 42 U.S.C. 9601 et seq... 28

Heart of Atlanta Motel, Inc. v. United States, 379

U.S. 241 (1964) 5 Ee ne ers dee toe eo 95 42 U.S.C. 9607 (a) (1) saneccouccossessoqurcaseosecasooncsonncoos 23

Hughes V. Oklahoma, 441 U.S. 322 (1979) ..19, 22, 23, 25 42 U.B.C. 9607 (4) (A) .----ne-ovoneseeevvrnnnneeesereeeere 25

Illinois v. General Electric Co., 683 F.2d 206 (7th Federal Water Pollution Control Act, 33 U.S.C.

Cir. 1982), cert. denied, 461 U.S. 913 (1983) ..13-14, 16, NBDE OE BOs ne cnecnneennnnnncnnnnnvnnvnvnvevvvvvvnnnnnnaronernrne 2

24, 26 Hazardous and Solid Waste Amendments of 1984,

Katzenbach v. McClung, 379 U.S. 294 (1964) ......... 25 Pub. L. No. 98-616, 98 Stat. 3221... 6

Maine v. Taylor, 477 U.S. 131 (1986) ........... 13, 26, 27, 28 § 202 (a), 98 Stat. 3232-3233... 6

Maryland Vv. Louisiana, 451 U.S. 725 (1981) ..17, 18, 19-20 Resource Conservation and Recovery Act of 1976,

Minnesota Vv. Clover Leaf Creamery, 449 U.S. 456 42 U.S.C. 6901 et seq.:

CRT) annie ennneerenorrennrennevnmensssvnncnnt 16 42 U.S.C. 6903(5) (B) (§ 1004(5) (B)) ......... 2

National Solid Wastes Mgmt. Ass’n v. Alabama PL) Eee eee 2

Dep’t of Envt’l Mgmt., 910 F.2d 713 (11th Cir. hig ek eae ee 3

ID ncerscsssrnesvincsnenovisednvenanintincsoeititionesen sensocsoecesseeseees 26 Ee 2

New Energy Co. v. Limbach, 486 U.S. 269 (1988) .. 16, 17, pS ee 4

19 I ic aseacanenchinnsnadesentiannes 6

New England Power Co. v. New Hampshire, 455 ae eel 2 4

WEAR, SEE CD anna nnee nsec nssorenpreseersetpevennascni — 22 Saas 11

O’Neil v. Picillo, 883 F.2d 176 (1st Cir. 1989), GES SR ne 6,7

cert. denied, 493 U.S. 1071 (1990) —....... 23 Se 6

Philadelphia v. New Jersey, 437 U.S. 617 (1978) passim See een ts)... 7

Pike Vv. Bruce Church, Inc., 397 U.S. 137 (1970). 24 pe Se 6

Sporhase Vv. Nebraska, 458 U.S. 941 (1982) ........ 25 BUSS. esis) (4) ........................................ 7

United States v. Darby, 312 U.S. 100 (1941) ....... 25 po Ene 6

42 U.S.C. 6924(m) (§ 3004(m) )...0000... ee. 6

VI

Statutes, regulations and rule—Continued :

42 U.S.C. 6924(m) (1) (§ 3004(m) (1)) .........

42 U.S.C. 6924(m) (2) (§ 3004(m) (2) ) ..........

IN cs cticnccticvinsssevnsscensteveencrectesosescoe

I a Se tccescntencnsnnnnscastsinennensnnecesenessccunens

I iii vihecaitcencniicsanpaaseniintnrbiadendsesantenenstosa

Superfund Amendments and Reauthorization Act,

42 U.S.C. 9601 et seq.:

42 U.S.C. 9604 (c) (9) (A) .......22...22..-e eee ee

43 U.8.C. 9604 (ce) (9) (B) ..........................24.......

43 U.S.C. 9604(e) (9) (C) ...................................

es I CN ID asancccncscs ccs ccsncse-srnsasee

Ala. Code (1990) :

nicer niacin eaebatmbiedsilanciennscisheitaniatedinbaisiiite

ERIS ROR Ce aeruemneseerat nt veneers meee aD OPC

SITE issiscusbabisurinenicntewnticbunetbncigombuntannsntcsiieniandiesivess

I I ins i cisnecentcninedicabensiieiineonscane

Alabama Act, No. 90-326, 1989 Ala. Acts 90-326,

I aoc

| eee

Sections 261.20-261.24 (Subpt. C) 000000...

Sections 261.30-261.35 (Subpt. D) 0.00...

ERR ACCS i aE RE

Section 264.231 .......... Fer Tn a NT eS I

EATS AS I is Sines rea

ES el Se re es cr SO

I iniiclishcustonsesbiananscecsenilihdelamaeinte iiantleiticiipdaase

Pt. 268:

11

oac®#nana a Wwwww w

Co w

Miscellaneous:

ee RR

VII

f

Alex Brown & Sons, Environmental Services

Group, Hazardous Waste: Land Disposal Up-

I IE I HE Siciteissiiscctinstencicsetbtscinciiictadiorninncncnes

Assurance of Hazardous Waste Capacity: Guid-

ance to State Officials:

OSWER Directive No. 9471.00-01 (formerly

No. 9010.00 (Dec. 1988) ..............000.20.ce ee.

OSWER Directive No. 9471.00-0la (Apr. 15,

in

OSWER Directive No. 9471.00-02 (formerly

en I I a etussdiebistnneonineiion

Chemical Waste Management, Inc., RCRA Permit

No. ALD 000 622 464 (May 27, 1987) .......0.......

132 Cong. Rec. (1986) :

DPRA, Inc., Authorization Tracking Data System

I, a snieuiuneumcenain

EPA (199?) :

1987 Biennial Report Data Analysis ..................

1987 National Biennial RCRA Hazardous

I aa

EPA, Permit Writers’ Guidance Manual for Haz-

ardous Waste Land Storage and Disposal Facili-

ties, OSWER Directive No. 9472-00-1 (Feb.

SEINE la cibsaseincashiscinc aiietwicintescidatethetientdiavuidiienaiotendncmditiinladoiiies

EPA, RCRIS_ National Oversight Database

I sk deliigbenioatanelibeiadie

EPA, The Nation’s Hazardous Waste Management

Program at a Crossroads: The RCRA Imple-

moenteteen Bieedy CIGBO) ............-cececcocecccoccceccccccccce

Be BR re

55 Fed. Reg. (1990) :

REL pee CARS I At NN Oe a

ES EA TUE ne ER TES se

SE ae i ORS OLA ir ARE a

56 Fed. Reg. 7134 (1991)

Page

10

10

i ie

VIII

Miscellaneous—Continued :

Hearing Before the Subcomm. on Transportation

and Hazardous Materials of the House Comm.

on Energy and Commerce, 102d Cong., 1st Sess.

PI cc chencnielbeaseesdacinien sinscesssaidltiebladaliiiaiaiisiababaihadabietes

Memorandum from Suzanne Rudzinski, Environ-

mental Protection Agency, to Regional Hazard-

ous Waste Branch Chiefs (May 6, 1991) -............

National Solid Wastes Management Ass’n, /nter-

change of Hazardous Waste Management Serv-

ices Among States (Dec. 31, 1990) —....................

Page

a

a ee +

Iu the Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-471

CHEMICAL WASTE MANAGEMENT, INC., PETITIONER

Vv.

GuY HUNT, GOVERNOR OF THE STATE OF ALABAMA,

ET AL,

ON WRIT OF CERTIORARI TO

THE SUPREME COURT OF ALABAMA

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

Petitioner, the operator of a large-scale commer-

cial waste disposal facility in Emelle, Alabama, chal-

lenges Alabama legislation imposing burdens on the

management of hazardous waste generated outside of

Alabama. The United States Environmental Protec-

tion Agency has a vital interest in maintenance of

the national market in hazardous waste treatment,

storage and disposal. In addition, the Emelle facility

is one of only two facilities east of the Mississippi

River authorized under federal law to dispose of poly-

chlorinated biphenyls (PCBs); it is also licensed to

dispose of a wide range of other hazardous wastes.

It accordingly receives substantial shipments from

hazardous waste sites subject to cleanup under the

(1)

2

Superfund program, and is extensively used by agen-

cies of the United States for storage of the hazardous

wastes they generate.

At this Court’s invitation, the United States filed

a brief amicus curiae at the petition stage of this

case.

STATEMENT

1. Hazardous wastes are defined by federal law

as solid wastes which may “pose a substantial pres-

ent or potential. hazard to human health or the en-

vironment when improperly treated, stored, trans-

ported, disposed of, or otherwise managed.” § 1004

(5)(B) of the Resource Conservation and Recovery

Act of 1976, 42 U.S.C. 6903(5)(B) (RCRA).’ Sub-

title C of RCRA, 42 U.S.C. 6921-6939b, directs the

Environmental Protection Agency (EPA) to estab-

lish a comprehensive “cradle to grave” system regu-

lating the generation, transport, storage, treatment

! Solid wastes are defined in 42 U.S.C. 6905 (27) as:

discarded material including solid, liquid, semisolid or

contained gaseous material resulting from industrial,

commercial, mining, and agricultural operations, and

from community activities * * *.

The statutory definition specifically excludes domestic sew-

age and point source discharges regulated under the Federal

Water Pollution Control Act, 33 U.S.C. 1251 et seq., as well

as certain material regulated under the Atomic Energy Act,

42 U.S.C. 2011 et seg. Therefore, hazardous wastes do not

typically include nuclear (radioactive) wastes, although cer-

tain “mixed” radioactive and hazardous wastes are regulated

under RCRA as weil as the applicable nuclear waste statute.

See generally Gov't Br. in State of New York v. United States,

County of Allegheny Vv. United States, and County of Cortland

v. United States, Nos. 91-543, 91-558, and 91-563. The Emelle

facility is not authorized to accept mixed wastes. Chemical

Waste Management, Inc., RCRA Permit No. ALD 000 622 464

(May 27, 1987).

3

and disposal of hazardous wastes.* To implement this

regime, RCRA directs EPA to “promulgate criteria

for identifying the characteristics of hazardous waste,

and for listing hazardous waste.” 42 U.S.C. 6921.

EPA’s regulations identify hazardous wastes in two

ways. First, “characteristic” hazardous wastes, sub-

ject to regulation under Subtitle C of RCRA, include

wastes that exhibit any of four specific properties

(ignitability, corrosivity, reactivity, and toxicity).

See 40 C.F.R. Pt. 261, subpt. C. Second, “listed”

hazardous wastes are identified in published lists of

specific hazardous wastes (40 C.F.R. Pt. 261, subpt.

D). Most of these wastes are listed because they con-

tain significant levels of hazardous constituents *

which, if released into the environment, could present

a substantial threat to human health and the environ-

ment. There are more than 500 listed wastes.¢

2 Under RCRA, States may be authorized to implement a

state program in place of the federal program, if, inter alia,

the state program is “equivalent to” and “consistent with”

the federal program. 42 U.S.C. 6926(b). In general, once a

State is so authorized, the State, and sometimes also the fed-

eral, requirements apply, and the State becomes the permit-

ting authority. In addition, “[n]othing in [RCRA] shall be

construed to prohibit any State * * * from imposing any

requirements * * * which are more stringent than those im-

posed by [federal] regulations.” 42 U.S.C. 6929. Currently,

47 States and territories—including Alabama—have author-

ized RCRA programs. DRPA, Inc., Authorization Tracking

Data System Report (Feb. 12, 1992).

*“Hazardous constituent” is a term of art referring to

those constituents compiled in Appendix VIII of 40 C.F.R.

Pt. 261 that serve as the basis for listing a waste as a toxic

hazardous waste. 40 C.F.R. 268.2(b). See 40 C.F.R. 261.11

(a) #3).

‘Certain wastes, such as household wastes, and certain

petroleum, agricultural and mining wastes, are excluded from

regulation under subpart C. 40 C.F.R. 261.4.

4

Thus, the term “hazardous waste” covers a wide

variety of wastes that pose different types of threats

to human health and the environment. For example,

various forms of heavy metals such as cadmium and

lead may leach into soils and the groundwater if ex-

posed to the elements. Some organic chemicals may

be extremely hazardous to human health at low levels

of exposure. See generally 55 Fed. Reg. 11,798

(1990). Paint wastes may be ignitable at relatively

low temperatures, and therefore are dangerous if not

properly managed. See 55 Fed. Reg. 22,543 (1990).

Approximately 240 million tons of hazardous waste

are generated in this country annually by some

80,000 generators. Hearing Before the Subcomm. on

Transportation and Hazardous Materials of the

House Comm. on Energy and Commerce, 102d Cong.,

lst Sess. 4 (1991) (testimony of Don R. Clay, As-

sistant Administrator for Solid Waste and Emer-

gency Response). Most of these wastes are generated

by the chemical industry; the rest come from a wide

variety of industrial processes, including petroleum

refining, metal finishing, general manufacturing, elec-

tronics, printing, health services, and transportation.

See EPA, 1987 Biennial Report Data Analysis (1992).

Particular types of wastes are generated in volumes

ranging from a few tons annually (e.g., certain lab-

oratory wastes) to several million tons annualiy

(e.g., corrosive or acid wastes generated by the chem-

ical industry). Generators of hazardous waste are

subject to provisions of RCRA governing, inter alia,

labeling, manifesting, and packaging. 42 U.S.C.

6922.

Pursuant to RCRA, facilities that treat, store or

dispose of listed or characteristic hazardous wastes

must obtain a permit or interim status, and must

comply with applicable regulations. 42 U.S.C. 6924,

5

6925. Nationwide, there are approximately 4,700 fa-

cilities operating under federal permits authorizing

the treatment, storage and disposal of some form of

hazardous waste; these facilities contain approxi-

mately 81,000 distinct waste management units.

EPA, The Nation’s Hazardous Waste Management

Program at a Crossroads: The RCRA Implementa-

tion Study 7 (1990). EPA has promulgated detailed

regulations prescribing minimum operating stand-

ards for the management of hazardous waste at these

facilities. 40 C.F.R. Pts. 264, 265. For each type of

facility, the regulations govern such matters as in-

spection, testing, methods of treating incompatible

wastes, groundwater monitoring, insurance require-

ments, recordkeeping and reporting requirements and

performance standards.* /bid.

In addition, the regulations prescribe specific re-

quirements for the facility’s design and operation,

specify closure and post-closure procedures, and im-

pose financial responsibility requirements, as well as

general facility standards such as security, contin-

gency planning, and siting location standards.’ In

5 Special requirements apply to particular wastes, and cer-

tain forms of treatment, storage or disposal are prohibited

for certain wastes. For example, the placement of bulk or

non-containerized liquids or waste-containing free liquids in

landfills is prohibited. 40 C.F.R. 264.314. Some wastes may

not be incinerated, 40 C.F.R. 264.344; others may be placed

in surface impoundments only in accordance with an EPA-

approved plan. 40 C.F.R. 264.231.

* For example, the regulations prohibit or restrict the siting

of facilities near areas of seismic activity, in 100 year flood-

plains, or in salt dome formations, salt bed formations, or

underground mind or caves. 40 C.F.R. 264.18, 265.18. See

generally EPA, Permit Writers’ Guidance Manual for Haz-

6

conjunction with the Department of Transportation,

EPA also regulates the transportation of hazardous

wastes. See 42 U.S.C. 6923.’

In 1984, Congress amended RCRA to minimize

reliance on land disposal. Hazardous and Solid

Waste Amendments of 1984, Pub. L. No. 98-616, 98

Stat. 3221 (HSWA). As amended, Subtitle C of

RCRA phases out most land disposal of untreated

hazardous wastes.* Ultimately, all waste placed in

land disposal units must either be treated to meet

standards established by EPA under RCRA § 3004

(m) (42 U.S.C. 6924(m), amended by § 202(a), 98

Stat. 3232-3233), or be disposed of in a land dis-

posal unit from which EPA has determined that

there will be no migration of hazardous constituents

for as long as the waste remains hazardous. See 42

U.S.C. 6924(d), (e), and (g).’

ardous Waste Land Storage and Disposal Facilities, OSWER

Directive No. 9472-00-1 (Feb. 1985).

7 Approximately 20,000 transporters are regulated under

RCRA. EPA, RCRIS National Oversight Database (1992).

* Land disposal includes, but is not limited to: “any place-

ment of such hazardous waste in a landfill, surface impound-

ment, waste pile, injection weil, land treatment facility, salt

dome formation, salt bed formation, or underground mine or

cave.” 42 U.S.C. 6924(k).

®*Section 3004(m) (2) of RCRA, 42 U.S.C. 6924(m) (2),

authorizes the land disposal of wastes otherwise subject to a

prohibition, provided that the wastes are “treated to a level

or by a method specified” by EPA pursuant to Section 3004

(m) (1), 42 U.S.C. 6924(m) (1). That Section instructs EPA

to establish levels or methods for the treatment of a hazard-

ous waste which diminish the toxicity of the waste, or reduce

the likelihood of migration, so that the threat to human

7

The pretreatment standards for the land disposal

of most hazardous wastes have been promulgated.”

Unless a “capacity variance” is approved by EPA to

delay the effective date of the treatment standards be-

cause adequate treatment capacity does not exist,

wastes must be pretreated prior to land disposal. If

EPA has approved a capacity variance for a particu-

lar waste, that waste may be land disposed without

meeting the prescribed treatment standard, but only

at sites where minimum prescribed technological re-

quirements are met. 42 U.S.C. 6924(h) (4) and (0).

Petitioner’s Emelle facility is one of a limited num-

ber of land disposal sites that meets these statutory

requirements.

health and the environment is minimized. To satisfy this

directive, EPA has required treatment to specified levels

(e.g., numerical constituent requirements) or by identified

methods in order to minimize threats. For example, certain

organic wastes, including some pesticides, must be incinerated.

55 Fed. Reg. 22,612 (1990). Other wastes require a series of

treatments: for example, the prescribed treatment method

for one group of wastes includes treatment by electrolytic

oxidation, followed by algaline chlorination, followed by

precipitation, settling and filtration. 54 Fed. Reg. 26,600

(1989).

1” The first phase of the “land ban,” covering certain listed

solvent and dioxin-containing wastes, became effective Novem-

ber 8, 1986. 42 U.S.C. 6924(e) (1). The land ban for another

group of wastes known as “California list wastes,” including

PCBs, halogenated organic compounds, and certain liquid

wastes, took effect July 8, 1987. 42 U.S.C. 6924(d). The

standards for most other hazardous wastes were promulgated

between 1988 and 1990. EPA is now in the process of setting

the standards for “newly identified” wastes, i.e. those listed

or identified as hazardous since RCRA was amended by

HSWA.

8

2. Most of the hazardous waste in this country is

disposed of in surface impoundments on the site

where it is generated. Nevertheless, each year almost

4 million tons of it is transported across state lines

for recycling, treatment and disposal using a wide

variety of treatment and disposal technologies. Every

State exports some types of hazardous waste, and all

but twelve States import some form of hazardous

waste. 1987 National Biennial RCRA Hazardous

Waste Report 2-36. Fourteen States export more

than half of their hazardous wastes; in nine States,

out-of-state wastes constitute more than 50% of the

waste managed. /d. at 2-41. On average, States ex-

port wastes to 19 other States, to take advantage of

12 different types of management technology. Na-

tional Solid Wastes Management Ass’n, Interchange

of Hazardous Waste Management Services Among

States 8, 12 (Dec. 31, 1990).

Given the nature of the hazardous waste manage-

ment industry, such interstate transactions are in-

evitable. A wide range of factors—economic and en-

vironmental—dictates the choice of hazardous waste

management facilities. Some wastes are generated

in such small amounts that it is impractical to re-

quire a facility to treat or dispose of them in every

State in which they are generated, or even in most

States. In many cases, treatment or disposal facili-

ties are so capital intensive that their economic vi-

ability depends upon the fact that there are only a

few of them in the country.”

'! For example, there are currently a small number of large

regional hazardous waste disposal facilities: 35 commercial

land disposal facilities in 17 States, and 15 commercial incin-

erators in 9 States. Memorandum from Suzanne Rudzinski,

Environmental Protection Agency, to Regional Hazardous

»—-

9

The new land disposal pretreatment regulations

promulgated under HSWA have intensified the spe-

cialization of the hazardous waste market and high-

lighted the advantages of economies of scale. In gen-

eral, the regulations encourage the incineration and

recycling of hazardous waste. Because they require

more technically complex and costly treatment prior

to land disposal, many smaller generators cannot

afford to treat their wastes on site, or do not possess

the technical expertise to do so. In addition, the new

regulations encourage existing disposal facilities such

as deepwells and landfills to add treatment processes,

thus tending further to integrate the hazardous

waste management industry.”

In sum, the business_of treating, storing and dis-

posing of hazardous wastes is extraordinarily com-

plex. For a significant portion of those wastes—de-

pending on the type of waste involved and or the

size and sophistication of the generating company—

Waste Branch Chiefs (May 6, 1991). Attempts to establish

smaller facilities have not proved commercially feasible. One

commentator notes that Iowa recently considered establishing

a long-term storage facility in the State to serve in-state

needs. Based on the relatively small amount of waste the

facility would handle, the per ton storage cost would have

been several times greater than the cost of existing out-

of-state disposal. Alex Brown & Sons, Environmental Serv-

ices Group, Hazardous Waste: Land Disposal Update 7 (Oct.

13, 1989).

12 Similar increases in off-site treatment and the use of

commercial treatment facilities can be expected from other

recently promulgated EPA regulations—those specifying

stringent air emissions standards for boilers and industrial

furnaces (56 Fed. Reg. 7134 (1991)), and Clean Water Act

pretreatment and discharge standards (33 U.S.C. 1317(b)

and (c); 40 C.F.R. Pt. 403).

10

commercial treatment, storage or disposal in another

State in the only realistic alternative.

3. Congress has recognized the necessity for long

range planning to assure the continued availability

of adequate facilities to treat and dispose of haz-

ardous wastes. In 1986, the Superfund Amendments

and Reauthorization Act (SARA) required each

State (as a condition of receiving federal cleanup

funds) to demonstrate that it has access to “adequate

capacity” for the “destruction, treatment or secure

disposition” of the hazardous wastes “reasonably ex-

pected” to be generated in the State during the fol-

lowing twenty-year period. 42 U.S.C. 9604(c)

(9)(A). The capacity can be “outside the State in

accordance with an interstate agreement or regional

agreement or authority.” 42 U.S.C. 9604(c) (9) (B).”

The assurance of capacity has to be acceptable to the

United States, and the capacity must comply with

RCRA. 42 U.S.C. 9604(¢c) (9) (C) and (D).

EPA has interpreted the SARA capacity assurance

provision in a series of guidance documents,‘ which

indicate that an exporting State’s reliance on out-of-

state capacity to satisfy its capacity assurance re-

quirement must be in accordance with an interstate

183 See 132 Cong. Rec. 28,436 (1986) (remarks of Sen.

Chafee) (“A site in every State is not required. In some cases,

multi-State efforts may be appropirate. Use of binding agree-

ments through interstate compacts guaranteeing access to a

facility is only one example of how a State may provide the

requisite assurances.”). Accord 132 Cong. Rec. 29,741 (1986)

(statement of Rep. Florio).

14 Assurance of Hazardous Waste Capacity: Guidance to

State Officials, OSWER Directive No. 9471.00-01 (formerly

No. 9010.00 (Dec. 1988)); supplemented by OSWER Direc-

tive No. 9471.00-02 (formerly 9010.00a (Oct. 1989)) and

OSWER Directive No. 9471.00-0la (Apr. 15, 1991).

11

agreement, regional agreement, or similar authority.

However, a State may not ban the import of wastes

to the facilities upon which it is relying to provide

its own assurance of capacity. So interpreted, the

capacity assurance program aims to create an ade-

quate nationwide capacity to provide for the disposal

of hazardous wastes expected to be generated during

the next twenty years. With adequate capacity in

place, generators of hazardous wastes can choose be-

tween the alternative facilities available for the

treatment and disposal of wastes. But the capacity

assurance program does not dictate where the wastes

expected to be generated in each State will actually

be treated and/or deposited.

4. This action was instituted in Alabama circuit

court by petitioner, the owner and operator of the

Emelle Facility, a commercial hazardous waste treat-

ment and disposal landfill in western Alabama oper-

ating under both federal and state permits. RCRA,

42 U.S.C. 6924(a); Ala. Code § 22-30-12 (1990).

The suit challenges, on federal and state constitu-

tional grounds, Alabama Act No. 90-326, 1989 Ala.

Acts 90-326, § 3, which imposes “an additional fee

* * * levied at the rate of $72.00 per ton” for “waste

and substances which are generated outside of Ala-

bama and disposed of at a commercial site * * * in

Alabama” (Pet. App. 106a). The circuit court found

the Additional Fee unconstitutional as a violation of

the Commerce Clause because it facially discriminates

against interstate commerce in hazardous wastes

(Pet. App. 85a).”

' The court upheld the constitutionality of two other pro-

visions of Act No. 90-326 that petitioners argued had the

practical effect of requiring only the Emelle facility to bear

significant economic burdens. The Alabama Supreme Court

12

The Alabama Supreme Court reversed that ruling;

it distinguished the Additional Fee from the similar

state legislation struck down in Philadelphia v. New

Jersey, 4837 U.S. 617 (1978), on the ground that the

Fee serves legitimate health and safety, environ-

mental conservation, and compensatory revenue pur-

poses that could not adequately be served by non-

discriminatory alternatives (Pet. App. 44a).”°

This Court granted certiorari limited to the ques-

tion of whether Alabama’s Additional Fee provision

violates the Commerce Clause.

SUMMARY OF ARGUMENT

This case is controlled by the convergence of estab-

lished principles respecting state taxation of inter-

state commerce with this Court’s decision in Phila-

delphia v. New Jersey, 437 U.S. 617 (1978). The

Court there held that interstate waste transactions are

fully subject to the Commerce Clause prohibition of

discriminatory state statutes. Although respondents

attempt to defend the facially discriminatory Addi-

tional Fee by asserting legitimate state environ-

mental and health and safety concerns, those concerns

can be at least as effectively addressed by non-

discriminatory restrictions on the transportation and

disposal of all hazardous waste within the State, and

accordingly are insufficient to justify the treatment

of out-of-state generated hazardous waste less fav-

orably than identical] in-state generated waste. Nor

affirmed these holdings, and this Court limited the grant of

the petition for certiorari to consideration of the provision

discussed in text.

16 Justice Houston concurred on the theory that hazardous

waste is not an article of commerce protected under the Com-

merce Clause. Pet. App. 48a.

13

can the Additional Fee be upheld on the theory that

it is a quarantine law that prevents traffic in noxious

substances, because it is a tax, not a ban, and it is

not evenhanded. Finally, because Alabama has not

demonstrated that the out-of-state waste subject to

the Additional Fee is significantly different from

hazardous waste generated in Alabama, Maine v.

Taylor, 477 U.S. 131 (1986), does not justify that

tax.

ARGUMENT

I. THE INTERSTATE MARKET IN HAZARDOUS

WASTE MANAGEMENT SERVICES IS_ PRO-

TECTED BY THE COMMERCE CLAUSE

The generation of waste, including hazardous

waste, is a necessary component of any economy

based on manufacturing. If our nation’s manufac-

turers are unable to dispose of their wastes in an

environmentally sound and cost effective manner,

they will be unable to continue to operate.” See

Illinois v. General Electric Co., 683 F.2d 206, 213

(7th Cir. 1982) (“The efficient disposal of wastes

is as much a part of economic activity as the produc-

tion that yields the wastes as a byproduct, and to im-

pede the interstate movement of those wastes is as

inconsistent with the efficient allocation of resources

as to impede the interstate movement of the product

7 Risk management is an important component of cost

effective disposal of hazardous waste. To enable industry to

manage risks, especially the risk of potential Superfund lia-

bility, industry must be able to obtain access to safe facilities

—-including centralized treatment and storage facilities that

may be located in States other than those in which the waste

is generated—and to limit the number of facilities to which

waste is sent. Restrictions on cross-border movements of

waste could effectively preclude these waste management

strategies for many companies.

14

that yields them.”), cert. denied, 461 U.S. 913

(1983). . .

This Court recognized this principle in Philadelphia

v. New Jersey, 437 U.S. 617, 622 (1978), which held

that interstate waste transactions are fully subject to

the Commerce Clause prohibition against discrimina-

tory or unduly burdensome state statutes.’ That de-

cision relies upon the purposes animating dormant

commerce clause analysis to hold that New Jersey

could not “isolate itself in the stream of interstate

commerce from a problem shared by all.” 437 U.S.

at 629. See Wyoming v. Oklahoma, 112 S.Ct. 789,

800-801 (1992) (relying on and quoting Philadelphia

v. New Jersey). Cf. Baldwin v. G.A.F. Seelig, Inc.,

294 U.S. 511, 523 (1935) (“[The Constitution] was

framed upon the theory that the peoples of the sev-

eral states must sink or swim together, and that in

the long run prosperity and salvation are in union

and not division.”’).

That principle is at least as important to industries

serving the nationwide market for hazardous waste

management as it is to other industries. A national

market in waste management services is necessary

for the safe and efficient management of hazardous

wastes. See pp. 8-10, supra. Arbitrarily dividing

waste management along state lines would inhibit

the selection of the most environmentally sound and

least costly treatment and disposal option for each

particular type of such waste. And Balkanizing

18 The New Jersey statute and implementing regulations,

while providing a limited exception for certain shipments of

hazardous wastes, banned the import of hazardous waste

destined for “disposal on or in the lands of [New Jersey].”

437 U.S. at 619 n.2 (quoting regulations).

15

waste treatment and disposal would force the replica-

tion of facilities already existing in other States,”

at best resulting in unnecessary duplicative invest-

ments in waste facilities and at worst threatening

the economic viability of both the existing and the

new facilities.” See pp. 8-10, supra.

There is nothing unique about hazardous waste

that places it outside the stream of commerce to

which the dormant commerce clause applies. In Phil-

adelphia v. New Jersey, this Court held that “[a]]ll

objects of interstate trade merit Commerce Clause

protection; none is excluded by definition at the out-

set.” 437 U.S. at 622. Thus, Philadelphia v. New

Jersey rejected the notion that the Commerce Clause

distinguishes between desirable objects of trade and

undesirable ones, or, as one court of appeals has

In that situation, States or other governmental units

might be forced to subsidize the construction and operation of

local disposal facilities. Moreover, the prospect of such

Balkanization could be expected not only to deter the com-

mercial construction of facilities—which could no longer rely

upon a multistate market—but also to deter investment in

developing new, environmentally protective waste disposal

technologies.

*” The effect is similar to that of a state restriction permit-

ting local hospitals to serve only state residents. Preventing

out-of-state patients from utilizing a local hospital’s expertise

or specialized equipment would not only penalize those pa-

tients, but might also make it economically infeasible for the

local hospital to offer some of those specialized services. If

there are only a limited number of people nationwide who

need a particular type of treatment, a hospital that cannot

serve the entire market may not be able to purchase the

specialized equipment necessary to perform that treatment.

For similar reasons, fewer resources would be invested in

research to develop new treatments.

16

termed it, between “goods” and “bads.” Illinois v.

General Electric Co., 683 F.2d at 213.”

Il. THE ADDITIONAL FEE VIOLATES THE COM-

MERCE CLAUSE

A. Alabama’s Additional Fee Provision Discriminates

Against Interstate Commerce in Hazardous Waste

Management Services.

The federal union is built upon a presumption of

free trade within a national market. Westinghouse

Electric Corp. v. Tully, 466 U.S. 388, 402 (1984).

The powers given Congress to regulate interstate

trade by the Commerce Clause of the Constitution,

Art. I, § 8, Cl. 3, reflect this bedrock principle. And

“ijt has long been accepted that the Commerce

Clause * * * also directly limits the power of the

States to discriminate against interstate commerce.’

New Energy Co. vy. Limbach, 486 U.S. 269, 273

(1988). Such a prohibition on state laws that dis-

21 The rejection of such a distinction recognizes that most

articles of commerce have both good and bad effects upon the

State that imports them. For example, imports of automobiles

may increase pollution, highway congestion, and the risks of

accidents in the importing State. Cf. Minnesota v. Clover

Leaf Creamery, 449 U.S. 456, 470 (1981) (plastic, nonreturn-

able nonrefillable containers consume energy resources and

require solid waste disposal). Although the import of waste

for disposal may present health and safety concerns, it also

provides a source of employment for the State. Moreover,

hazardous waste is now a raw material for some industrial

processes. Thus, there is no bright live difference between

hazardous waste and many other commodities in the inter-

state market. In any event, under Philadelphia v. New Jersey,

supra, a particular court’s determination of what is beneficial

to the importing State and what is not provides no sound

basis for the definition of an article of commerce entitled to

constitutional protection.

17

criminate against interstate commerce is necessary

to prevent a “multiplication of preferential trade

areas destructive of the very purpose of the Com-

merce Clause.” Dean Milk Co. v. City of Madison,

340 U.S. 349, 356 (1951).

The Commerce Clause limitation restricts state tax-

ing powers; “a State may not tax a transaction or

incident more heavily when it crosses state lines than

when it eccurs entirely within the State.” Armco Inc.

v. Hardesty, 467 U.S. 638, 642 (1984); accord West-

inghouse Electrie Corp., 466 U.S. at 403." Alabama’s

*2 The incompatibility of discriminatory taxes and the Com-

merce Clause was recognized by this Court more than one

hundred years ago in Guy Vv. Baltimore, 100 U.S. 434 ( 1879),

which invalidated a Baltimore ordinance that charged a

greater wharfage fee to vessels transporting out-of-state pro-

duced goods and articles than to vessels carrying Maryland

goods. The rule of decision in that case was as follows:

[N]o State can, consistently with the Federal Constitu-

tion, impose upon the products of other States * * * or

upon citizens because engaged in the sale therein, or the

transportation thereto, of the products of other States,

more onerous public burdens or taxes than it imposes

upon the like products of its own territory.

100 U.S. at 439. Other than a compensating tax (see note

24, infra), this Court has never upheld a state tax that

imposes a higher rate for interstate commerce than intrastate

commerce. See, e.g., New Energy Co. v. Limbach, 486 U.S.

269, 280 (1988) (tax credit for ethanol produced within State

or in State providing reciprocal tax credit) : Bacchus Imports

Ltd. Vv. Dias, 468 U.S. 263 (1984) (tax exemption for liquor

produced from plants native to State) ; Maryland v. Louisiana,

451 U.S. 725 (1981) (taxing system including credits for

most in-state natural gas uses); Boston Stock Exchange Vv.

State Tar Comm'n, 429 U.S. 318 (1977) (greater tax burden

on interstate securities transactions than on similar intrastate

transactions); Hale v. Bimeo Trading, Inc., 306 U.S. 375

(1939) (inspection fee for foreign cement).

18 .

Additional Fee provision violates this nondiscrimina-

tion principle on its face: an in-state generator can

dispose of its hazardous waste in an Alabama landfill

for $25.60 per ton, while an out-of-state generator

must pay an additional $72 per ton to dispose of

hazardous waste that is identical to the in-state waste

in all respects except its State of origin. Pet. App.

86a, 106a. Such discrimination goes to the very heart

of what the Commerce Clause prohibits.”

B. Alabama Hos Nondiscriminatory Alternatives

Available te Effect its Legitimate State Purposes.

Typically, once a state tax challenged under the

Commerce Clause has been found to be discrimina-

tory, it has been struck down without further inquiry.

Westinghouse Electric Corp., 466 U.S. at 406-407;

Maryland y. Louisiana, 451 U.S. 725, 760 (1981):

Boston Stock Exchange v. State Tax Comm’n, 429

U.S. 318, 337 (1977). As this Court explained in

Freeman v. Hewitt, 329 U.S. 249, 253 (1946), dis-

criminatory taxes are unlike police power regulation

of local aspects of interstate commerce:

Because the greater or more threatening burden

of a direct tax on commerce is coupled with the

lesser need to a State of a particular source of

revenue, attempts at such taxation have always

been more carefully scrutinized and more con-

sistently resisted than police power regulations

of aspects of such commerce.

Where a tax purports to protect the health and

safety of the State’s citizens rather than simply to

23 Alabama’s denomination of these charges as fees, rather

than taxes, is irrelevant for constitutional purposes. See,

e.q., American Trucking Ass’ns, Inc. Vv. Scheiner, 483 U.S. 266

(1987) (analyzing market fee as tax).

19

provide an additional source of revenue, it may never-

theless be appropriate to analyze that rationale to de-

termine whether nondiscriminatory alternatives would

serve as well to further it. This Court has cautioned,

however, that any proffered justification for a fa-

cially discriminatory statute would be subject to “the

strictest scrutiny of any purported legitimate local

purpose and of the absence of nondiscriminatory al-

ternatives.” Hughes v. Oklahoma, 441 U.S. 322, 337

(1979) ; ef. New Energy Co., 486 U.S. at 278-280 &

n.3 (tax on certain out-of-state produced ethanol in-

valid despite asserted health related aim).

The State of Alabama has legitimate concerns about

the disposal of hazardous wastes at the Emelle fa-

cility. The Alabama Supreme Court identified several

of these concerns: protecting the health and safety

of Alabama’s citizens, compensating Alabama’s citi-

zens for the costs and burdens of hazardous waste

disposal, conserving the State’s natural resources, and

reducing the overall flow of waste traveling on the

State’s highways. Pet. App. 44a. However, since

Alabama’s hazardous waste is identical to that of

out-of-state generators (Pet. App. 86a), Alabama’s

legitimate concerns relate to the volume of hazardous

waste disposed of within the State, not to its source.

These concerns, therefore, provide no justification for

treating disposal of out-of-state generated hazardous

waste less favorably than in-state generated hazard-

ous waste.**

** If in-state disposers were actually paying more than out-

of-state disposers for waste disposal, Alabama could properly

Impose a compensating tax on interstate commerce in hazard-

ous waste that would “equalize[] previously unequal tax bur-

dens by offsetting ‘a specific tax imposed only on intrastate

commerce for a substantially equivalent event.’” American

Trucking Ass’ns, Inc. V. Scheiner, 483 U.S. at 287: see Mary-

20

Moreover, Alabama has several less discriminatory

alternatives available to serve its legitimate state in-

terests. The health and safety of Alabama’s citizens

could be served as well by imposing a cap or a per

ton tax on all hazardous waste disposal within the

State. And if Alabama objects to the landfilling of

hazardous waste, it can stem the flow of hazardous

waste into landfills either by capping the total amount

of landfilled waste or by taxing the disposal of haz-

ardous waste in landfills. See Philadelphia v. New

Jersey, 437 U.S. at 626 (State “may pursue [its eco-

romie and environmental] ends by slowing the flow of

all waste into the State’s remaining landfills, even

though interstate commerce may incidentally be af-

fected”): ef. Commonwealth Edison Co. v. Montana,

453 U.S. 609, 619 (1981) (State can charge a per

ton severance tax on coal even if it is borne pri-

marily by out-of-state consumers) .*

land v. Louisiana, 451 U.S. at 758-759. Alabama does not,

however, assert that there is a specific tax on intrastate com-

merce for which the statute at issue in this case would serve

as a compensating tax.

25 If Alabama believes that federal regulation of hazardous

waste management facilities is insufficient to protect the pub-

lic health and safety of Alabama’s residents, it is free to adopt

more stringent regulations. 42 U.S.C. 6929 (“Nothing in this

chapter shall be construed to prohibit any State or political

subdivision thereof from imposing any requirements, includ-

ing those for site selection, which are more stringent than

those imposed by [federal] regulations.”); cf. Hazardous

Waste Treatment Council v. Reilly, 938 F.2d 1390, 1397 (D.C.

Cir. 1991) (upholding EPA’s determination that North Caro-

lina’s statute requiring thousand-fold dilution of discharges

from commercial hazardous waste treatment facilities into

surface waters above public drinking water intakes is con-

sistent with federal law). It may not be consistent with

RCRA, however, for a State to ban all disposal of hazardous

21

A nondiscriminatory tax could also be used to com-

pensate the State for the expense of regulating, moni-

toring and dealing with the adverse effects of hazard-

ous waste disposal. See Evansville-Vanderburgh Air-

port Authority District y. Delta Airlines, Ine., 405

U.S. 707, 717 (1972) (user fee for use of airport

constitutional where interstate and intrastate flights

a to the same charges); Capital Greyhound

— Brice, 339 U.S. 542, 548 (1950) (highway

The Alabama Supreme Court also found that the

Additional Fee would conserve the environment and

the State’s natural resources. Alabama’s interest in

conserving its landfill capacity for its own in-state

generators does not justify discrimination against in-

terstate commerce.” This Court has long held that

a State cannot discriminate against out-of-state com-

merce as a means of reserving its natural resources

for its own citizens. As the Court explained in West

v. Kansas Natural Gas Co., 221 U.S. 229, 255 (1911):

If the States have such [a] power * * * Pennsyl-

vania might keep its coal, the Northwest its

waste within its borders. See Ensco, Inc. v. Dum 80

743, 745 (8th Cir. 1986). =e ohana

*° The Alabama Supreme Court suggested that a flat tax on

all hazardous waste disposal was not a viable alternative in

this case because “Alabama is bearing a grossly dispropor-

tionate share of the burdens of hazardous waste disposal for

the entire country.” Pet. App. 46a. But if a disproportionate

portion of the hazardous waste disposed of in Alabama is

generated out-of-state, then that same portion of a non-

discriminatory tax on waste disposal would be borne by gen-

erators in other States.

Pr As discussed pp. 10-11, supra, the capacity assurance pro-

visions of SARA are intended to assure adequate disposal

sites nationwide for Alabama-yenerated hazardous waste.

22

timber, the mining States their minerals * P Me

[The] influence on interstate commerce need not

be pointed out * * *. If one State has it, all

States have it; embargo may be retaliated by

embargo, and commerce will be halted at state

lines.

Accord, e.g., Hughes v. Oklahoma, 441 U.S. 322, 338

(1979) (ban on export of state minnows) ; Philadel-

phia v. New Jersey, 437 U.S. at 624, 626-627 (ban on

out-of-state waste) ; New England Power Co. v. New

Hampshire, 455 U.S. 331, 339 (1982) (ban on out-

of-state sale of hydroelectric energy).

Finally, the Alabama Supreme Court justified the

Additional Fee as an attempt to reduce the flow of

waste traveling on the State’s highways. Alabama

could reduce the risks of accidents on its roads by

vehicles carrying hazardous waste by imposing a

nondiscriminatory per-mile tax on the use of those

vehicles. Cf. American Trucking Ass’ns, Inc. v.

Scheiner, 483 U.S. 266, 286 (1987) (tax that charges

out-of-state trucks five times as much as in-state

trucks per mile is plainly discriminatory). Alabama

may also seek authorization from the Secretary of

Transportation to enact stronger nondiscriminatory

safety regulations for the transportation of hazard-

ous waste. 49 U.S.C. App. 1811(b).*

28 Respondents assert (Hunt Br. in Opp. 12-13) that the

discriminatory fee is warranted by the risk that, if the State

is ultimately required to bear the costs of cleaning up the

Emelle Facility, it will be unable to obtain any meaningful

contribution from the out-of-state generators. But federal

law provides the State with ample authority to impose the

financial costs of cleaning up the Emelle Facility on the gen-

erators of the waste—both in-state and out-of-state. The

23

In short, Alabama has several alternativ

would serve its legitimate objectives at least ra ao

as the Additional Fee. Just as in Hughes v. Okla-

homa, 441 U.S. at 338, this statute “is certainly not

a last ditch’ attempt at conservation after nondis-

criminatory alternatives have proved unfeasible. It

is rather a choice of the most discriminatory means

even though nondiscriminatory alternatives would

seem likely to fulfill the State’s purported legislative

local purpose[s] more effectively.”

Ill. THE ADDITIONAL FEE CANNOT

BE

AS A QUARANTINE LAW a

This Court’s cases upholding state

the import of some articles of Pcl gn ro

antine” theory have no applicability here. As this

Court explained in Philadelphia v. New Jerse quar-

antine laws have withstood Commerce Clause chal-

lenges because they “prevent[] traffic in noxious ar-

a whatever their origin”—articles which by

heir very movement risk[] contagi

evils.” 437 U.S. at 628-629. _ Say ean tes.

cago dt N.W. Ry., 125 U.S. 465, 489 (1888) Ala-

bama’s Additional Fee is not a quarantine provision

Comprehensive Environmental Response, Com i

Liability Act (CERCLA), 42 U.S.C. 9601 et _ ggmoneeme

subjects petitioner, as owner and operator of the facility moe

the generators of the waste to strict, joint and several lia

aay See “all costs of removal and remedial action incurred

by i a State.” 42 U.S.C. 9607(a) (1) and (4) (A). See

€-9-, O'Neil Vv. Picillo, 883 F.2d 176 (1st Cir. 1989), cert.

denied, 493 U.S. 1071 (1990). Alabama state law also holds

operators, generators and transporters of hazardous mat

rials liable for cleanup of hazardous substance site Als.

Code §§ 22-30A-2, 22-30A-8 (1990). gos

24

because it is a tax, not a ban,” and because it is not

evenhanded.

Although quarantine statutes may appear to dis-

criminate facially against interstate commerce be-

cause they are directed at out-of-state commerce,

they are in fact evenhanded because all traffic in

those items is prevented. Philadelphia v. New Jer-

sey, 437 U.S. at 628-629. See, e.g., Clason v. Indiana,

306 U.S. 439, 443 (1939) (rejecting Commerce

Clause challenge to statute restricting transport of

dead animals, noting that State has a similar scheme

respecting in-state carcasses).*° It is entirely approp-

riate for a court, in weighing the constitutionality of

such evenhanded statutes, to employ a balancing test

to determine whether the incidental effects on inter-

state commerce are outweighed by the dangers in-

herent in the movement of these commodities.” Phil-

adelphia v. New Jersey, 437 U.S. at 622; Asbell v.

Kansas, 209 U.S. 251, 256 (1908).*

29 A tax cannot be justified as a quarantine since quaran-

tined items must be destoyed immediately to protect the pub-

lic health. Philadelphia v. New Jersey, 437 U.S. at 628-629.

8 Although some of the quarantine cases do not explicitly

search for an in-state equivalent to the discriminatory stat-

utes, such a search is unnecessary where it is apparent that

“t]he hostility is to the thing itself, not to merely interstate

shipments of the thing.” Illinois v. General Electric, 683 F.2d

at 214.

31 Although the quarantine cases predate Pike v. Bruce

Church, Inc., 397 U.S. 137, 142 (1970), their balancing test

is not unlike the approach established in that case to deter-

mine the constitutionality of a regulatory statute that is even-

handed in its application, but which incidentally burdens in-

terstate commerce. -

82 To the extent that earlier cases suggest that the items

involved are not articles of commerce, they have been im-

25

Alabama’s Additional Fee is not a quarantine stat-

ute because Alabama does not preclude the disposal

of hazardous waste that is generated within its bor-

ders. As the Court explained in Guy v. Baltimore,

100 U.S. 434, 443 (1879):

In the exercise of its police powers, a State may

exclude from its territory, or prohibit the sale

therein of any articles which, in its judgment,

fairly exercised, are prejudicial to the health or

which would endanger the lives or property of

its people. But if the State, under the guise of

exerting its police powers, should make such ex-

clusion or prohibition applicable solely to articles,

of that kind, that may be produced or manu-

factured in other States, the courts would find no

plicitly overruled by the last fifty years of Commerce Clause

jurisprudence, which has recognized the broad range of intra-

state activities that can affect interstate commerce. See, e.g.,

Wickard V. Filburn, 317 U.S. 111 (1942) (returning to Chief

Justice Marshall’s broad definition of commerce in Gibbons

Vv. Ogden, 22 U.S. (9 Wheat.) 1 (1824)); Heart of Atlanta

Motel, Inc. v. United States, 379 U.S. 241 (1964) ; Katzenbach

Vv. McClung, 379 U.S. 294 (1964); United States v. Darby,

312 U.S. 100 (1941). The comprehensive federal regulation

of hazardous waste management services is consistent with

this broad view. See discussion pp. 2-7, supra.

This Court has repeatedly emphasized that “[t]he defini-

tion of ‘commerce’ is the same when relied on to strike down

or restrict state legislation as when relied on to support some

extension of federal control or regulation” (Hughes v. Okla-

homa, 441 U.S. at 326 n.2). Accord Sporhase v. Nebraska,

458 U.S. 941, 951-952 (1982); Philadelphia v. New Jersey,

437 U.S. at 622-623. Thus, a conclusion in this case that

hazardous waste is not an article of commerce would cast

doubt on the constitutional basis for all hazardous waste

regulation under RCRA.

26

difficulty in holding such legislation to be in con-

flict with the Constitution of the United States.

See National Solid Wastes Mgmt. Ass’n v. Alabama

Dep’t of Envt’l Mgmt., 910 F.2d 713, 719 (11th Cir.

1990) (ban on transport of hazardous waste into Ala-

bama from some, but not all, States suggests that

hazardous waste “is not inherently too dangerous to

be a product in commerce”) ; Illinois v. General Elec-

tric Corp., 683 F.2d at 215-216 (in striking down

state ban on the import of nuclear waste, noting that

State allowed in-state nuclear waste to be shipped and

stored within the State).

Although Alabama claims that it is motivated by

health and safety concerns, its higher fee is directed

at wastes that come from out of State, not at those

which are intrinsically more dangerous for some rea-

son. A quarantine rationale provides no justifica-

tion for differential treatment of wastes based solely

on their State of origin, absent any difference in de-

gree of dangerousness related to their out-of-state

origin.”

Alabama’s reliance upon this Court’s decision in

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

33 In Philadelphia v. New Jersey, the Court noted that in

the quarantine situation, movement of the quarantined item

was considered unsafe, and distinguished the New Jersey

statute, which was concerned with evils after disposal, not

during transportation. 437 U.S. at 629. In the instant case,

the Alabama Supreme Court relied on transportation risks as

a justification for Alabama’s Additional Fee statute, Pet. App.

44a, but if transportation risks were its true concern, Ala-

bama would place a tax on all transportation of hazardous

waste, not just movement from out of State to in-state dis-

posal sites (which may involve shorter transportation dis-

tances within Alabama than occur in many in-state ship-

ments).

27

differential treatment of out-of-state generated haz-

ardous waste is unwarranted. Maine v. Taylor is not,

in fact, a quarantine case. Rather than upholding

a State law that banned import of an item that would

be similarly treated within Maine, i.e., a law against

the import of diseased baitfish, it upheld a state law

that banned the import of all baitfish because out-of-

state baitfish are, in fact, different from in-state

baitfish. Jd. at 148, 151-152. Thus, Maine v. Taylor,

supra, follows the logic of the rule set forth in Phila-

delphia v. New Jersey, 437 U.S. at 629, that out-of-

state articles of commerce must be treated the same

as in-state articles of commerce when they are indis-

tinguishable. The converse of that rule, as demon-

strated in Maine v. Taylor, supra, is that the com-

parable treatment rule does not apply when the arti-

cles are dissimilar. Since the facts in Maine v. Taylor

demonstrated that the out-of-state baitfish were dif-

ferent, and that the difference posed a substantial

threat to the State’s natural resources, they could be

banned absent a less discriminatory means of pro-

tecting Maine’s environment. 477 U.S. at 140. In

contrast, here the trial court found that out-of-state

generated hazardous waste is the same as Alabama-

generated hazardous waste (Pet. App. 86a), and no

one has disputed that finding. Alabama’s discrim-

inatory provision is accordingly unconstitutional.

; Respondents cite Maine v. Taylor for the proposi-

tion that state measures that seek to protect public

health, safety, or the environment are constitutional,

in contrast with those that attempt to place in-state

interests in a position of commercial advantage. Hunt

Br. in Opp. 11; Sizemore Br. in Opp. 9-10. The

Court made no such distinction in that case. While it

did recognize that state laws that amount to simple

28

economic protectionism have been subject to a virtual

per se rule of invalidity, 477 U.S. at 148, it also re-

confirmed the unconstitutionality of “laws that re-

spond to legitimate local concerns by discriminating

arbitrarily against interstate trade,” noting that “the

evil of protectionism can reside in legislative means

as well as legislative ends.” Jd. at 148 n.19, quoting

Philadelphia v. New Jersey, 437 U.S. at 626. See

also Wyoming v. Oklahoma, 112 S. Ct. at 801. In

upholding the ban on baitfish imports at issue in

Maine v. Taylor, the Court relied in part on the lower

court findings that the State’s justifications for the

statute were legitimate, 477 U.S. at 148-149, but that

did not end the inquiry. Despite the proper motiva-

tions of the legislators, the Court subjected the Maine

statute to the strict scrutiny test, and found it con-

stitutional only after determining that Maine’s “legit-

imate local purposes * * * could not adequately be

served by available nondiscriminatory alternatives.”

Id. at 151.

Thus, Maine v. Taylor is fully consistent with the

holding and rationale of Philadelphia v. New Jersey.

Both cases confirm the unconstitutionality of Ala-

bama’s Additional Fee, which serves no legitimate

state purpose that could not adequately be served by

available nondiscriminatory alternatives.

29

CONCLUSION

For these reasons, the judgment of the Alabama

Supreme Court should be reversed.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

BARRY M. HARTMAN

Acting Assistant Attorney General

LAWRENCE G. WALLACE

GERALD H. YAMADA Deputy Solicitor General

Principal Deputy HARRIET S. SHAPIRO

General Counsel Assistant to the Solicitor General

LISA K. FRIEDMAN PETER R. STEENLAND, JR.

Associate General ANNES. ALMY

Counsel for NANCY K. STONER

Solid Waste and LOUISE F. MILKMAN

Emergency Attorneys

Response

ANGELIA SOUDER BLACKWELL

Attorney

Environmental Protection Agency

MARCH 1992

WW U.S. GOVERNMCN: PRINTING OFFICE, 1992 312324 45357