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

Supreme Court brief1992

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Guy Hunt, GOVERNOR OF THE STATE OF ALABAMA;

ALABAMA DEPARTMENT OF REVENUE; and

JAMES M. SIZEMORE, JR., COMMISSIONER OF THE

ALABAMA DEPARTMENT OF REVENUE,

Respondents.

On Writ of Certiorari to the

Supreme Court of Alabama

¥ BRIEF OF THE STATES OF SOUTH CAROLINA,

“ KANSAS, LOUISIANA, AND UTAH AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

T. TRavis MEDLOCK - WALTON J. McLEop, III

Aitorney General Genera! Counsel

EDwIn E. EVANS JACQUELYN S. DICKMAN

Chief Deputy Attorney General Assistant General Counsel

JAMES PaTRICK HUDSON SAMUEL L. FINKLEA, III

Deputy Attorney General Staff Counsel

KENNETH P. WOODINGTON SouTH CAROLINA DEPARTMENT OF

Senior Assistant Attorney HEALTH AND ENVIRONMENTAL

General CONTROL

Treva G. ASHWORTH 2600 Bull Street

Senior Assistant Attorney Columbia, SC 29201

ay (803) 734-4910

MakK R. ELAM CHARLES F. LETTOW *

pay) Legal Counsel MATTHEW D. SLATER

of the Governor CLEARY, GOTTLIEB, STEEN &

STATE OF SOUTH CAROLINA HAMILTON

Post Office Box 11549 1752 N Street, N.W.

Columbia, SC 29211 Washington, D.C. 20036

(808) 734-8680 (202) 728-2700

* Counsel of Record for Amicus

April 9, 1992 Curiae State of South Carolina

(Additional counsel on inside cover)

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QUESTION PRESENTED

Whether the excessive environmental burdens and costs

attributable to disposal at landfills within Alabama of

large quantities of hazardous waste generated outside

Alabama, exacerbated by EPA’s failure to provide for

installation of new capacity for hazardous waste disposal

in landfills, support higher fees for the disposal of that

waste within the State.

(i)

TABLE OF CONTENTS

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TRTEe GE BFE BD onccncenscesccscccsnecscesssecsssserasenseess

INTEREST OF THE STATES OF SOUTH CARO-

LINA, KANSAS, LOUISIANA, AND UTAH ...........

ADDITIONAL STATUTES AND REGULATORY

PROVISIONS INVOLVED ...........22...2.22...2.ccceeeeeeeeeeeees

SUPPLEMENTAL STATEMENT OF THE CASE ....

SUMMARY OF ARGUMENT. .00WW02.............ce.ecsseeeeeeeeee

TESTERS Cr Tee TRO EE

THE ALABAMA SUPREME COURT COR-

RECTLY ACCORDED SIGNIFICANT WEIGHT

TO ALABAMA’S LEGITIMATE PUBLIC PUR-

POSES IN ADDRESSING THE DISPOSAL OF

HAZARDOUS WASTE WITHIN ITS BORDERS..

A. The Federal Regulatory Program Has Failed To

Relieve States Like Alabama And South Caro-

lina Of An Insupportable Burden Placed On

Them By The Numerous States Which Have

Failed To Site Any Landfill Facilities For Haz-

ss issaselibeanden

B. Measured By A “Dormant” Commerce Clause

Analysis Or Statutory Criteria, Alabama’s Dif-

ferential Fee Is Tailored To Serve A Legitimate

pe RET: SESSA TEN CRIS lS nO

SUNT Scivsticnnniicisiesintnnrsintontensianniniintmiatinnnaitnivninainmcmeneie

(iii)

TABLE OF CONTENTS—Continued

APPENDIX:

RCRA § 3006 (b), 42 U.S.C. § 6926 (b)

RCRA § 3009, 42 U.S.C. § 6929 022 eeeeee

iirc tatiiaiitihetaicintianiinattaininitdininccennces

50 Fed. Reg. 46,437-40 (Nov. 8, 1985) ................-...

Memorandum from Lee M. Thomas to Regional

Administrators, “Policy Regarding Hazardous

Waste Management Capacity and RCRA Consist-

ency Issues” (Dec. 23, 1988) .............0000000-00-

TABLE OF AUTHORITIES

Cases Page

American Mining Congress v. EPA, 824 F.2d 1177

rr ee re oO 15

Chevron U.S.A. Ince. v. NRDC, 467 U.S. 887

Ee eae ae ane 24

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

itt iia tana aeianinaniaitentniitiineall 6,7, 24

Hazardous Waste Treatment Council v. Reilly, 938

- B . By Tol Re . } Reeeeeeeees 5, 12, 20

Hazardous Waste Treatment Council v. South

Carolina, 945 F.2d 781 (4th Cir. 1991) -............. 4, 20

Investment Co. Inst. v. Camp, 401 U.S. 617

RAE PERI EEN SC A ee Fe 24

Maine v. Taylor, 477 U.S. 131 (1986) ........... 138, 20, 25, 26

National Solid Wastes Management Association v.

Voinovich, No. 91-3466 (6th Cir. March 4,

RAST EE TLS: ee aT ae 26

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

iE NSC Ee ID RT One 25

New England Power Co. v. New Hampshire, 455

ET ETT A Te Ae eT 23

New York v. Reilly, No. 91-CV-1418 (N.D.N.Y.

REE Seca Ne eee Pe ee 13

Northeast Bancorp., Inc. v. Board of Governors,

i 23

Prudential Ins. Co. v. Benjamin, 328 U.S. 408

LE ET ey ee ee ea ee 23

South Carolina ex rel. Medlock v. Reilly, No. 91-

3090 NHJ (D.D.C. filed Dec. 2, 1991) .......000.... 12, 13

South-Central Timber Dev., Inc. v. Wunnicke, 467

I es 23

White v. Massachusetts Council of Constr. Em-

ployers, Inc., 460 U.S. 204 (19838) 2.00000. 23

Wyoming v. Oklahoma, US. ——, 112 8S. Ct.

SEE AEE ulicieieinciapiiichinnianwigitabiiacanilatordktmninéclinneneesuenesen 23

Constitutional Provision

Commerce Clause, art. I, § 8, cl. 3 00.0... passim

TABLE OF AUTHORITIES—Continued

Federal Statutes Page

Resource Conservation and Recovery Act of 1976,

as amended (“RCRA”), 42 U.S.C. § 6901-6992k..passim

RCRA § 1002 (a) (4), 42 U.S.C. § 6901 (a) (4) -........ 21

RCRA § 1002 (b) (7), 42 U.S.C. § 6901 (b) (7) ......9, es r

| 4,2

RCRA § 1002 (b) (8), 42 U.S.C. § 6901 (b) (8) ......9, 17, os

24,

RCRA § 1004 (27), 42 U.S.C. § 6903 (27) ................. 15

RCRA §§ 3001-3020, 42 U.S.C. § 6921-6939a ............ 5, 21

RCRA § 8004 (k), 42 U.S.C. § 6924(k) -................... 3

RCRA § 3005 (e) , 42 U.S.C. § 6925 (e) -..................--. 3, 16

RCRA § 3006, 42 U.S.C. § 6926 _........... 2, 4, 5, 6, 20, 21, 22

RCRA § 3006 (b) , 42 U.S.C. § 6926 (b) ............ 2, 5, 6, 23, 24

RCRA § 3006 (d), 42 U.S.C. § 6926(d) -.................-.. 5

RCRA § 3006 (e) , 42 U.S.C. § 6926 (e) -.................-... 5, 23

RCRA § 3009, 42 U.S.C. § 6929 _........... 4, 5, 6, 21, 22, 23, 24

RCRA § 7006 (b), 42 U.S.C. § 6976(b) .................-... 5, 6, 23

Comprehensive Environmental Response, Compen-

sation, and Liability Act of 1980, as amended

(“CERCLA”), 42 U.S.C. §§ 9601-9675 ....... 3, 12, 14, 15,

18, 20, 21, 26

CERCLA § 104(c) (9), 42 U.S.C. § 9604 (c) (9) ......3, 8, 11,

12, 14, 18, 19, 20

CERCLA § 104(c) (9) (B), 42 U.S.C. § 9604(c)

RSet RE Si ie cae en Tos ee 8, 25

Superfund Amendments and Reauthorization Act

(“SARA”), Pub. L. No. 99-499, 100 Stat. 1613

(Oct. 17, 1986) (amending scattered actions of

STITT scisicsiiassnsatcnsteaRistbshindsiadesdibbdtiassettanasbteetaiatnbisemend 2, 8,10

Federal Regulations

I ci hcinneccespnestnntninisevnidtincinmpansiniinnssiinenn 15

40 C.F.R. Part 262, Subpart B ..................-...--2.---...---- 6

I ss caincrrenensiecinsisinvinidipnsenstinsuinciinaihdacinnis 16

I stccinrnsscernenccrrcecentnvanpsnisniniiiiiitiiabnansiel 4,12,14

lk 2) | | | ene 2, 4, 6, 7, 13, 23, 25, 26

es iy I ocrscccesesnsnyrareveenisvensentetsncssoneesion 2, 23

vii

TABLE OF AUTHORITIES—Continued

State Statute

Alabama Act No. 90-326 (codified at Ala. Code

Legislative Materials

131 Cong. Rec. $11,584 (daily ed., Sept. 17, 1985 _....

Page

132 Cong. Rec. $14,924 (daily ec., Oct. 3, 1986) ....11, 18-19

H.R. Rep. No. 1491, 94th Cong., 2d Sess., re-

printed in 1976 U.S. Code Cong. & Admin. News

SARS ERE SS os IY Ai a ae a oe re

H. Rep. No. 253(1), 99th Cong., Ist Sess., re-

printed in 1986 U.S. Code Cong. & Admin.

lilies

Resource Recovery and Conservation Act of 1976:

Hearings on H.R. 14496 Before the Subcomm.

on Transportation and Commerce of the Com-

mittee on Interstate and Foreign Commerce,

94th Cong., 2d Sess. 97 (1976) (Statement of

Sheldon Meyers, Deputy Assistant Administra-

tor for Solid Waste Management Programs,

Environmental Protection Agency) ....................

S. Rep. No. 11, 99th Conz., Ist Sess. (1985)...

Administrative Materials

45 Fed. Reg. 33,290 (May 19,1980) ....0

50 Fed. Reg. 46.437 (Nov. 8, 1985)... 2, 7,

53 Fed. Reg. 16,264 (May 6, 1988)

54 Fed. Reg. 27,170 (June 28, 1989) 0.

Assurance of Hazardous Waste Capacity: Guid-

ance to State Officials, OSWER Directive No.

9471.00-01 (formerly No. 9010.00 (Dec. 1988) ),

supplemented by OSWER Directive No. 9471.00-

02 (formerly 9010.00a (Oct. 1989) ) and OSWER

Directive No. 9471.00.0la (Apr. 15, 1991)) .......

EPA Office of Solid Waste & Emergency Response,

The Nation’s Hazardous Waste Management

Program at a Crossroads—The RCRA Imple-

mentation Study (July 1990) 2.000000.

21, 22

6,7

viii

TABLE OF AUTHORITIES—Continued

Page

Memorandum from Lee M. Thomas to Regional

Administrators, “Policy Regarding Hazardous

Waste Management Capacity and RCRA Con-

sistency Issues” (Dec. 23, 1988) .......................... 8

Miscellaneous

BNA Daily Env’t. Rep., Feb. 4, 1992, A6 _.............. 17

Chemical Marketing Reporter, November 18, 1991,

SUT siicctidictickicnsilhinsiapiisnnbaaiitibaipiniianaiiins 3

Crash on 1-270 Forces Evacuations in Rockville;

Officials Fear Leak of Explosive Cargo, Wash-

ington Post, Dec. 15, 1989, Al .............................. 10

Heat Ignites Truck’s Toxic Waste Paralyzing 1-95

in Va., Washington Post, July 24, 1991, Al -...... 10

General Accounting Office, Hazardous Waste,

Funding of Postclosure Liabilities Remains

I Ge TI decictectittaintentreaiditiinitioninncion 9

National Governors’ Association, Natural Re-

sources Policy Studies, Center for Policy Re-

search, Hazardous Waste Management In the

States: A Review of the Capacity Assurance

Process (March 1992 draft) -................... ....11, 12, 15, 17

CRA Tere, Fey TR, Be GO ceneecccccscccccccsccccssccscceees 3

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-471

CHEMICAL WASTE MANAGEMENT, INC.,

- Petitioner,

Guy HUNT, GOVERNOR OF THE STATE OF ALABAMA;

ALABAMA DEPARTMENT OF REVENUE; and

JAMES M. SIZEMORE, JR., COMMISSIONER OF THE

ALABAMA DEPARTMENT OF REVENUE,

Respondents.

On Writ of Certiorari to the

Supreme Court of Alabama

BRIEF OF THE STATES OF SOUTH CAROLINA,

KANSAS, LOUISIANA, AND UTAH AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

Pursuant to this Court’s Rule 37.5, the States of South

Carolina, Kansas, Louisiana, and Utah respectfully sub-

mit this brief as Amici Curiae in support of Respondents

Guy Hunt, Governor of the State of Alabama, the Ala-

bama Department of Revenue (“ADR’’), and James Size-

more, Jr., Commissioner of ADR.

INTEREST OF THE STATES OF SOUTH CAROLINA,

KANSAS, LOUISIANA, AND UTAH

The States of South Carolina, Kansas, Louisiana, and

Utah, like Alabama, are authorized by the U.S. Environ-

mental Protection Agency (“EPA”) to operate hazard-

ous waste management programs “in lieu of” the fed-

eral program, pursuant to Section 3006(b) of the Re-

source Conservation and Recovery Act of 1976, as

amended (“RCRA”), 42 U.S.C. § 6926(b), Appen‘tix

infra, at la. In granting its authorization for South

Carolina’s program, EPA specifically authorized South

Carolina to levy a higher fee for disposal of out-of-state

hazardous waste than for waste generated in-state. 50

Fed. Reg. 46,437 (Nov. 8, 1985), Appendix infra, at 4a.

EPA authorized South Carolina’s program in the face

of a challenge to the differential fee brought by the

Hazardous Waste Treatment Council (“HWTC”) on

federal statutory and Commerce Clause grounds.' HWTC

raised its claims in the authorization proceedings

before EPA; to be approvable, state programs must

be “consistent” with federal law and regulations. RCRA

§ 3006(b), 42 U.S.C. § 6926(b), Appendix infra, at la;

40 C.F.R. §§ 271.4(a), Appendix infra, at 2a-3a, and

271.22-.23. South Carolina thus has an interest in the

propriety of Alabama’s fees, although the South Carolina

provision stands on a different legal and factual footing

because it is an EPA-approved component, federally-

enforceable, of the State’s hazardous waste management

program operating “in lieu of” the federal RCRA pro-

gram. RCRA 3006, 42 U.S.C. § 6926, Appendix infra,

at la.’

Alabama and South Carolina also have a community

of interest as signatory states to the SARA Capacity

Assurance Regional Agreement, entered in October 1989.°

1In the present case, HWTC and National Solid Wastes Manage-

ment Association filed a brief Amici Curiae in support of Petitioner

Chemical Waste Management, Inc. (“CWM”) on March 12, 1992.

A division of CWM, Trade Waste Incineration, is a member of

HWTC.

2? EPA also has approved hazardous waste management programs

with differential fees in Ohio and Maine. See 54 Fed. Reg. 27,170

(June 28, 1989) (Ohio) ; 53 Fed. Reg. 16,264 (May 6, 1988) (Maine).

’ Tennessee and Kentucky are also signatories. North Carolina

joined the Regional Agreement in November 1989, but it was later

The purpose of the regional agreement is “to provide the

framework for a regional approach for the long-term

management of hazardous waste.” Regional Agreement,

second paragraph of recitals. “he Regional Agreement

is expressly contemplated and encouraged by federal law

—Section 104(c) (9) of the Comprehensive Environmen-

tal Response, Compensation, and Liability Act of 1980,

as amended (“CERCLA”), 42 U.S.C. § 9604(c) (9).*

Moreover, South Carolina, like Alabama, is one of the

few states to have a RCRA-permitted commercial haz-

ardous waste landfill in operation.’ Only one new com-

mercial hazardous waste landfill disposal facility has been

permitted and has begun operation anywhere in the na-

tion in the years since RCRA took effect. South Caro-

lina, like Alabama, had a pre-RCRA facility in place that

acquired “interim status” and then a RCRA permit as

automatically eliminated from the Agreement when it failed to site

and permit new treatment and disposal capacity for hazardous

wastes by dates specified in an addendum to the Agreement. See

Hazardous Waste Treatment Council v. South Carolina, 945 F.2d

781, 786 n.8 (4th Cir. 1991).

*See infra, p. 8 & n.10. CERCLA established the “Super-

fund” program to provide for remedies to be applied at facilities

and properties that have been contaminated with hazardous sub-

stances and are the site of a release or threat of release of such

substances. See 42 U.S.C. §$§ 9601-9675.

5 Besides landfills, “land disposal” by statutory definition includes

placement of hazardous waste in a “surface impoundment, waste

pile, injection well, land treatment facility, salt dome formation,

salt bed formation, or underground mine or cave.” RCRA § 3004(k),

42 U.S.C. § 6924(k). See Brief for the United States as Amicus

Curiae, at 6 n.8.

®In the instant case, the trial court found that only one new

landfill facility, to be located at Last Chance, Colorado, had been

permitted since the effective date of RCRA in 1980 and that fa-

cility had never operated or accepted waste. J.A. 57a (94). How-

ever, that one facility finally was completed and began operation in

the second half of 1991. See Chemical Marketing Reporter, Novem-

ber 18, 1991, at SR 12; USA Today, July 22, 1991, at 6A.

an existing facility. See RCRA § 3005(e), 42 U.S.C.

§ 6925(e). Because only one new commercial hazardous

waste landfill has been permitted and begun operation,

the few existing facilities that have remained in opera-

tion have been subjected to insupportable burdens. The

states where these few facilities are located, including

Alabama and South Carolina, have been forced to bear

burdens that are vastly disproportionate to their needs,

and to shoulder costs and detriments that other states,

the great majority, have not had to carry.

Given these circumstances, South Carolina, Kansas,

Louisiana, and Utah are in a position to provide a per-

spective which may assist the Court in evaluating the

viability of differential fees for landfilling hazardous

waste. Correspondingly, the States would benefit from a

decision by this Court respecting the ability and power

of states to tax and regulate disposal of hazardous waste

under the legislative structure enacted by Congress and

its regulatory implementation by EPA. See Hazardous

Waste Treatment Council v. South Carolina, 945 F.2d

781, 785 n.2 (4th Cir. 1991).

ADDITIONAL STATUTES AND REGULATORY

PROVISIONS INVOLVED

Pertinent portions of RCRA §§ 3006 and 3009, 42

U.S.C. $$ 6926 and 6929, governing authorized state haz-

ardous waste regulatory programs, are set out in an

Appendix to this brief, along with one of EPA’s imple-

menting regulations, 40 C.F.R. § 271.4. Also set out in

the Appendix is 50 Fed. Reg. 46,437-440 (Nov. 8, 1985),

the decision by EPA applying 40 C.F.R. § 271.4(a) in

approving the South Carolina hazardous waste manage-

ment program in which EPA addressed and expressly

approved the provision imposing higher fees for the dis-

posal within South Carolina of hazardous wastes gen-

erated outside the State.

SUPPLEMENTAL STATEMENT OF THE CASE

RCRA § 3006(b) provides that a state may be au-

thorized to “administer and enforce a hazardous waste

program” upon authorization from EPA. 42 U.S.C.

$ 6926(b), Appendix infra, at la. EPA must authorize

the state program unless the Agency finds that it “is

not equivalent to the Federal program,” “is not con-

sistent with the Federal or State programs applicable in

other States,” or “does not provide adequate enforcement

of compliance with the requirements of [Sections 3001-

3020 of RCRA].” Jd. RCRA § 3009 empowers states to

promulgate hazardous waste laws and regulations “which

are more stringent than those imposed by [RCRA],” and

it insulates state authority to regulate hazardous wastes

from preemption by federal regulatory requirements, so

long as the state provisions are not “less stringent than

those authorized under [RCRA §§ 3001-3020] respecting

the same matter.” 42 U.S.C. § 6929, Appendix infra,

at 2a.

Once a state program is authorized by EPA, the state

is required “to carry out such program in lieu of the

Federal program.” 42 U.S.C. § 6926(b), Appendix infra,

at la. Action taken by a state pursuant to its authorized

hazardous waste program carries “the same force and

effect as action taken by [EPA] under [RCRA].” 7d.

§ 6926(d). A state’s authorization continues until EPA

determines after a public hearing (initiated on its own

or by citizen petition) that the state program no longer

conforms to federal requirements. 42 U.S.C. § 6926(e);

40 C.F.R. §§ 271.22-.23. See Hazardous Waste Treat-

ment Council v. Reilly, 938 F.2d 1390 (D.C. Cir. 1991).

“{A]ny interested person” may seek judicial review in

a U.S. Court of Appeals of EPA’s grant, denial, or with-

drawal of state authorization to operate a hazardous

waste program in lieu of the Federal program. RCRA

§ 7006(b), 42 U.S.C. § 6976(b). Absent a timely petition,

review is barred.’

In implementing RCRA §§ 3006 and 3009, EPA’s reg-

ulations explicitly address the necessary and thus per-

missible effects on interstate commerce of an authorized

state program." In particular, 40 C.F.R. § 271.4(a) es-

tablishes standards to evaluate whether a state program

is “consistent” with federal law within the meaning of

RCRA § 3006(b), and one facet of the “consistency” re-

quirement is that a state program may not affect inter-

state commerce in an “unreasonabl[e]” manner:

Any aspect of the State program which unreasonably

restricts, impedes, or operates as a ban on the free

movement across the State border of hazardous wastes

from or to other States for treatment, storage, or

disposal at facilities authorized to operate under the

Federal or an approved State program shall be

deemed inconsistent.

Id., Appendix infra, at 3a. EPA adopted this “reason-

ableness” test in Section 271.4(a) to adjudge the inter-

state commerce effects of an authorized state program.

In doing so, the Agency gave explicit, detailed considera-

tion to the statutory framework and the provisions of

RCRA §§ 3006 and 3009 and this Court’s interpreta-

tions of the “dormant” Commerce Clause. See 45 Fed.

Reg. 33,290, 33,395 (May 19, 1980).°

7 Thus, review of EPA’s action in 1985 in approving South Caro-

lina’s program, including South Carolina’s differential fee, is no

longer available.

8 Some aspects of RCRA require reference to the state of origin

of hazardous waste; e.g., operation of the “manifest” system, which

for safety reasons tracks the transportation of hazardous waste,

40 C.F.R. Part 262, Subpart B. The federal framework must also

accommodate “more stringent” treatment, storage and disposal

standards implemented by states under Section 3009 of RCRA, 42

U.S.C. § 6929, Appendix infra, at 2a.

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

(1978), and deemed any “ban on the interstate movement of hazard-

Thereafter, when in 1985 HWTC raised a Commerce

Clause challenge to approval of South Carolina’s haz-

ardous waste program, EPA applied the “reasonable-

ness” test of 40 C.F.R. § 271.4(a) to South Carolina’s

differential fee on hazardous waste disposal. EPA deter-

mined that the “unreasonably restricts [or] impedes”

phrase in Section 271.4(a) created a “facts and circum-

stances test.” 50 Fed. Reg. 46,437, 46,440 (Nov. 8, 1985),

Appendix infra, at 13a. EPA resolved to “look to all

relevant factors” in evaluating a restriction or impedi-

ment on the movement of hazardous waste into a state.

Id. at 46,439, Appendix infra, at lla. The Agency con-

sidered the applicability of this Court’s decision in City

of Philadelphia v. New Jersey, 437 U.S. 617 (1978), but

concluded that the “Agency is not required to adopt the

Constitutional test for impediments or restrictions in

interpreting its own regulations, and declines to do so

here.” 50 Fed. Reg. at 46,439, Appendix infra, at 11a.

Moreover, EPA rejected the contention “that any dis-

parity in treatment between in-State and out-of-State

waste is per se unreasonable.” /d. After reviewing “[a]]l

available evidence,” id., Appendix infra, at 12a, EPA

sustained the South Carolina differential fee.

EPA’s process and procedures under its RCRA regu-

lations for review, approval, and withdrawal of state

hazardous waste regulatory programs thus are used to

address unreasonable restrictions on interstate waste

movements. However, another regulatory program ad-

ministered by EPA also has a direct bearing on permissi-

ous waste” as “automatically inconsistent.” 45 Fed. Reg. 33,290,

33,395 (May 19, 1980) (emphasis added). At the same time, EPA

did not indicate whether its regulatory language, ‘“unreasonabl[e|

restrict{ion] or imped{iment],” would or could be construed to

adopt the City of Philadelphia test. The evident difference between

the language chosen by EPA for the regulation and the explication

of the test set out in City of Philadelphia indicates that the regu-

latory criterion was intended by EPA to be interpreted differently

from the City of Philadelphia test.

ble state programs. The complementary program is that

arising under Section 104(c) (9) of CERCLA, 42 U.S.C.

§ 9604(c) (9). This program requires states to provide

assurance that they “have adequate capacity for the

destruction, treatment, or secure disposition of all haz-

ardous wastes that are reasonably expected to be gen-

erated within the State during the [next] 20-year period.”

Id. If a state does not provide the requisite assurance,

the sanction specified in CERCLA § 104(c) (9) is that

“the President shall not provide any remedial actions

pursuant to this section” within the state. In other words,

federal “Superfund” money for remedial actions within

the offending state shall be cut off." As a matter of policy,

EPA’s Administrator has directed tha’ procedures under

RCRA for withdrawing authorization of a state’s haz-

ardous waste regulatory program should be pursued only

“after determining that the CERCLA process has proven

ineffective.” Memorandum from Lee M. Thomas to Re-

gional Administrators, “Policy Regarding Hazardous

Waste Management Capacity and RCRA Consistency Is-

sues” (Dec. 23, 1988), Appendix infra, at 18a. “The

CERCLA capacity assurance process should be used as

an initial response to State actions which prohibit waste

management within State boundaries without environ-

mental justification.” Jd.

The capacity-assurance provision of CERCLA was a-

dopted because EPA and states had failed to permit new

1 CERCLA § 104(c) (9) was added by Section 104(k) of the

Superfund Amendments and Reauthorization Act of 1986 (“SARA”),

Pub. L. No. 99-499, 100 Stat. 1613 (Oct. 17, 1986) (amending scat-

tered sections of CERCLA). The facilities relied upon to make the

capacity-assurance showing must be “within the State or outside

the State in accordance with an interstate agreement or regional

agreement or authority.” CERCLA §104(c)(9)(B), 42 U.S.C.

§ 9604(c) (9) (B).

South Carolina and other states in the Southeastern Region have

entered into a SARA Capacity Assurance Regional Agreement, see

supra, pp. 2-3 & n.3, to coordinate efforts in assuring the requisite

capacity for disposing of hazardous wastes.

commercial hazardous waste disposal facilities following

implementation of RCRA. This failure had caused the

few states with pre-RCRA facilities (including Alabama

and South Carolina) to bear a vastly disproportionate

share of the Nation’s hazardous waste burden." In re-

1 The burden extends well beyond the commitment of land re-

sources for hazardous waste landfills and other disposal or treatment

facilities. (Land used as a hazardous waste landfill ordinarily is

prevented from being used in the future for a full range of pur-

poses.) The risk of releases from landfills is very real, notwithstand-

ing the existence of regulatory standards and requirements for

their design and operation. Landfilling as a disposal method is dis-

favored precisely because it cannot assure long-term containment.

See RCRA § 1002(b) (7) and (8), 42 U.S.C. § 6901(b) (7) and (8),

quoted infra, pp. 17-18 n.18; Brief for the Respondents, p. 5, quot-

ing General Accounting Office, Hazardous Waste, Funding Of Post-

closure Liabilities Remains Uncertain (June 1990), J.A. 84. And,

permitted facilities have been known not to comply with permit con-

ditions and terms. For example, in South Carolina, the one hazard-

ous waste landfill is located near Pinewood in Sumter County. That

facility operates under “interim status”; its issued permit has been

appealed and is not yet effective. See infra, p. 16 n.16. Since 1985,

when EPA approved South Carolina’s hazardous waste management

program, the State has issued eight separate enforcement orders

respecting the Pinewood landfill, as follows: In Re: GSX Services

of South Carolina, Inc., Administrative Consent Order No. 86-37-SW

(July 1, 1986) (expanded groundwater assessment program to assess

contaminants identified in groundwater); Administrative Consent

Order No. 86-47-SW (Sept. 5, 1986) (civil penalty of $1,500 and

schedule for submission of information necessary for permit appli-

cation) ; Amendment to Administrative Consent Order No. 86-37-SW

(June 29, 1987) (additional sampling activities and initial correc-

tive action) ; Administrative Consent Order No. 88-03-SW (Jan. 27,

1988) (civil penalty of $1,000 and schedule for submission of infor-

mation necessary for permit application) ; Administrative Consent

Order No, 89-15-SW (June 15, 1989) (civil penalty of $4,000 and

specifications for sampling and analysis plan) ; Administrative Con-

sent Order No. 90-80-SW (Nov. 26, 1990) (civil penalty of $1,100

and specifications concerning satellite container waste and spill

clean-up waste); Administrative Order No. 91-44-SW (July 11,

1991 (civil penalty of $64,590 and requirements related to leaks in

tanks and failure promptly to remove liquid in secondary contain-

porting the legislation that became SARA, the Senate

Committee on Environment and Public Works stated

that:

ment system); Administrative Consent Order No. 91-66-SW (Nov.

18, 1991) (civil penalty of $135,000, requirements for timely re-

moval of material in secondary containment system, repair of

berms for landfill cells, and repair of liners to cells).

Moreover, transportation of hazardous wastes has proven to be

troublesome. For example, on July 23, 1991, a truck carrying toxic

wastes on I-95 just south of Washington, D.C. caught fire by spon-

taneous combustion of the wastes. See Heat Ignites Truck’s Tozic

Waste Paralyzing 1-95 in Va., Washington Post, July 24, 1991, at

Al. The truck burned for several hours before firefighters ap-

proached the vehicle because they feared that barrels in the truck

could explode. Jd. Press reports stated that “‘the road situation be-

came increasingly desperate” :

Fire officials blocked off all lanes on I-95... .

Some cars were diverted to Route 1, the only other major

north-south road in the area. Then, from 1 to 2 p.m., Route 1

was also closed when some motorists there complained of burn-

ing eyes....

The congestion spread throughout the two-lane rural roads

that service the area.

Virginia State Police Sgt. Dean Jones said motorists in 18

cars and passengers in three buses were escorted off the high-

way because of health problems, including one man who suf-

fered a heart attack near the Beltway and I-95. Fairfax Fire

Department spokeswoman Pam Weiger said her agency treated

six people on the highway for heat exhaustion and evacuated

three others to area hospitals.

Id. at A6.

Other accidents involving trucks carrying hazardous wastes have

created similar harms and inconvenience to motorists and nearby

residents. See Crash on 1-270 Forces Evacuations in Rockville;

Officials Fear Leak of Explosive Cargo, Washington Post, Dec. 15,

1989, at Al (“tractor-trailer carrying 14 tons of hazardous chemi-

cals . . . overturned on Interstate 270 in Rockville at rush hour last

night, forcing the evacuation of at least 100 houses near the high-

way”).

The record in the instant case includes evidence of accidents in-

volving trucks carrying hazardous waste to the Emelle facility.

J.A. 38-39.

Superfund money should not be spent in States that

are taking insufficient steps to avoid the creation of

future Superfund sites. ...

While everyone wants hazardous waste managed

safely, hardly anyone wishes it managed near them.

This is the NIMBY syndrone (not in my backyard).

Yet, if the RCRA and Superfund programs are to

work—if public health and the environment are to

be protected—the necessary sites must be made

available.

S. Rep. No. 11, 99th Cong., 1st Sess., 22-23 (1985). See

also 182 Cong. Rec. S14,924-25 (Oct. 3, 1986) (state-

ment of Sen. Chafee); 131 Cong. Rec. $11,584-85 (Sept.

17, 1985) (statement of Sen. Chafee); H. Rep. No. 253

(I), 99th Cong., 1st Sess., at 180-31 (1985), reprinted in

1986 U.S. Code Cong. & Admin. News 2835, 2912-13.

Congress’ goals in adopting CERCLA § 104(c) (9) were

summarized as: “obtaining an [sic] good national picture

of hazardous waste management, ensuring that states

would develop the capacity needed to manage future

waste, and discouraging states from relying on out-of-

state disposal capacity in lieu of solving local siting bar-

riers.” ' By requiring each state to account for its own

hazardous waste and to provide for its disposition within

its borders, Congress intended that new disposal capacity

would be created, and it understood that states would also

distinguish (as Congress had) between hazardous waste

generated in-state and that generated out-of-state.

The CERCLA capacity-assurance provision has not had

the desired effect. Since its enactment, and indeed for

more than the past decade, only one new commercial haz-

ardous waste landfill has been permitted under RCRA

12 National Governors’ Association, Natural Resources Policy

Studies, Center for Policy Research, Hazardous Waste Management

In The States: A Review Of The Capacity Assurance Process, at 20

(March 1992 draft) [hereafter “NGA Capacity Assurance Study’’}.

and become operational anywhere in the Nation. See

supra, p. 3 & n. 6. Nothing has been accomplished

as a result of the federal regime in RCRA and CERCLA

to produce the desired proportionality of burden.“ More-

over, EPA has not acted under either the CERCLA ca-

pacity-assurance provision or under RCRA’s consistency

provision to apply sanctions to states that have refused to

create new disposal capacity by siting new facilities.

EPA’s default has reinforced other states’ reliance on the

few existing facilities in states like Alabama and South

Carolina. See, e.g., Hazardous Waste Treatment Council

v. Reilly, 938 F.2d 1390 (D.C. Cir. 1991); South Caro-

lina ex rel. Medlock v. Reilly, No. 91-8090 NHJ (D.D.C.

18 The NGA Capacity Assurance Study compiled data on net im-

ports and exports of hazardous waste in 1987, based on state capacity

assurance plans submitted in 1989. The Study reported that 35

states were net exporters of hazardous waste and that

the top five waste exporting states are Pennsylvania (158,677

tons), California (119,978 tons), Washington (108,491 tons),

Michigan (76,295 tons), and Massachusetts (71,109 tons). In

general, the amount of net waste exports are rather small com-

pared to the total amount of waste generated by each state. Of

the top five exporters, only Washington and Massachusetts had

export figures that exceeded 30 percent of their generation

(these states exported the equivalent of 33 and 46 percent,

respectively of their generated waste... .

In contrast, the net waste importers tend to report net trans-

actions on a more significant scale. The top five net importing

states are Indiana (251,478 tons), Louisiana (230,300 tons),

Alabama (199,859 tons), Ohio (183,005 tons), and South Caro-

lina (108,985 tons). It is interesting to note that the top net

importing states receive almost twice as much waste as that

which leaves the top five exporting states.

NGA Capacity Assurance Study, supra n.10, at 13-14.

In the ensuing several years, waste minimization efforts may

have modestly reduced the overall quantity of hazardous wastes

shipped but the proportions sent to and from the several states,

especially to landfills, have remained relatively constant because new

hazardous waste landfill capacity has not been added. See Brief

for the Respondents, p. 2 & n.1.

filed Dec. 2, 1991); New York v. Reilly, No. 91-CV-1418

(N.D.N.Y. filed Dec. 16, 1991).

On December 8, 1987, Alabama’s hazardous waste pro-

gram was approved under RCRA to operate in lieu of

the federal program. Following Alabama’s adoption of

the differential fee at issue in this case, neither EPA nor

CWM invoked RCRA’s regulatory process to challenge

the fee as being an unreasonable impediment to inter-

state commerce and therefore inconsistent with and viola-

tive of RCRA within the meaning of 40 C.F.R. § 271.4

(a). Instead, CWM brought suit in state court to con-

test the constitutionality of the provision. On appeal

from a decision after a four-day non-jury trial, the Ala-

bama Supreme Court held that Alabama had advanced

sufficient justification for its laws to withstand the ele-

vated-scrutiny test set out in Maine v. Taylor, 477 US.

131 (1986). This Court granted certiorari to address the

permissibility of the differential fee under the Commerce

Clause."

SUMMARY OF ARGUMENT

Alabama’s differential fee for disposal at permitted

landfills within the State of hazardous waste generated

outside the State serves Alabama’s legitimate purposes

that could not be served by alternatives. The landfill dis-

posal within Alabama of large amounts of hazardous

wastes generated elsewhere, and the associated transport-

ation of such wastes, imposes excessive environmental

burdens and costs on the State and its citizenry. These

14 Petitioner CWM unsuccessfully challenged other aspects of

Ala. Act No. 90-326 (codified at Ala. Code §§ 22-30B-1.1 et seq.)

under the Commerce Clause. Act No. 90-326 also imposed a base

disposal fee of $25.60 per ton on all hazardous waste disposed of

at Alabama’s commercial disposal facilities and placed a statutory

cap on the amount of hazardous waste that could be disposed of at

such facilities over a one-year period. The trial court ruled that

the base fee and statutory cap did not violate the Commerce Clause,

and that decision was upheld by the Alabama Supreme Court. See

Hunt v. Chemical Waste Management, Inc., 584 So.2d 1367 (1991),

Appendix to Petition, p. la,

burdens and costs are in part offset by the differential

fee.

The cause of the excessive landfill waste disposal bur-

den and costs placed on Alabama is readily discernable.

Since enactment of RCRA, there has been a general na-

tionwide failure to site new commercial landfill capacity

for disposal of hazardous waste. The paucity of new or

additional capacity in large part stems from EPA’s fail-

ure to implement its pertinent authority under RCRA

and CERCLA and from many states’ purposeful efforts

to saddle neighboring states with their hazardous w ste

disposal. The resulting scarcity has placed insupportable

burdens on states like Alabama and South Carolina which

have the few permitted landfill facilities. The Alabama

Supreme Court was correct to determine that, even when

subjected to elevated scrutiny under the “dormant” Com-

merce Clause, Alabama’s justifications based upon health,

safety, and welfare provide ample support for its hazard-

ous waste laws and, specifically, for the state’s differen-

tial fee on hazardous waste disposal.

This case turns on the detailed framework in RCRA

for adoption and approval of state hazardous waste regu-

latory programs, including differential fees, approval by

EPA of those programs, and implementation of them “in

lieu” of the federal program once EPA has given its ap-

proval. This RCRA framework, taken with the comple-

mentary capacity-assurance provisions in CERCLA § 104

(ce) (9), 42 U.S.C. § 9604(c) (9), displaces dormant Com-

merce Clause principles. EPA has adopted a regulatory

test, set out at 40 C.F.R. § 271.4, which makes “incon-

sistent,” and thus not approvable, a state “program

which unreasonably restricts, impedes, or operates as a

ban on the free movement ... of hazardous wastes.”

Appendix infra, at 3a. Because the Alabama fee differ-

ential is reasonable in the circumstances, it should be

sustained upon application of that test, whether by EPA

or a court.

ARGUMENT

THE ALABAMA SUPREME COURT CORRECTLY AC-

CORDED SIGNIFICANT WEIGHT TO ALABAMA’S

LEGITIMATE PUBLIC PURPOSES IN ADDRESSING

THE DISPOSAL OF HAZARDOUS WASTE WITHIN

ITS BORDERS

A. The Federal Regulatory Program Has Failed To Re-

lieve States Like Alabama And South Carolina Of An

Insupportable Burden Placed On Them By The Nu-

merous States Which Have Failed To Site Any Land-

fill Facilities For Hazardous Wastes

A major challenge in dealing with hazardous wastes

today, according to the National Governors’ Association’s

current study, is to

create incentives that discourage the generation of

hazardous wastes, encourage the development of in-

state or regional management capacity, and com-

pensate importing states for the significant costs,

risks, and other burdens they bear as hosts to hazard-

ous waste management facilities used by other states.

NGA Capacity Assurance Study, supra n.10, at D-1

(Excerpt from NGA Policy Position on Hazardous Waste

Management, as of March 22, 1992). For Alabama and

South Carolina, the legislative efforts to address this chal-

lenge — embodied in RCRA and CERCLA — have

failed. The federal RCRA and CERCLA programs have

had the ironic and unintended consequence of forcing a

few states with operable hazardous waste landfill facili-

ties to make up for the failure of other states to permit

disposal within their borders.“ Alabama and South Car-

15 The article of commerce at issue in this case is not the hazard-

ous waste itself, which by definition has no value or more probably

a negative value. See RCRA § 1004(27), 42 U.S.C. § 6903(27), de-

fining “solid waste,” of which hazardous waste is a subset, to mean

“any garbage, refuse, sludge from a waste treatment plant, water

supply treatment plant, or air pollution control facility and other

discarded material ....” (Emphasis added.) See also 40 C.F.R.

§ 261.2 (definition of “solid waste” in EPA’s regulations). In

olina, which had hazardous waste landfill disposal facili-

ties in place before the advent of RCRA, have suffered

the brunt of other states’ lack of political resolve to site

new landfill disposal capacity. See S. Rep. No. 11, 99th

Cong., Ist Sess., at 22-28 (1985) (quoted supra, p. 11).

The few states with existing hazardous waste landfill dis-

posal capacity thus have shouldered a wholly dispropor-

tionate share of the hazardous waste disposal burden.”*

Rather than promoting the development of a unified, co-

herent, nationwide response to this country’s hazardous

waste disposal problem, the federal regime instead has

institutionalized the NIMBY (not in my backyard) syn-

drome and penalized those states with existing facilities.

Under these circumstances, Alabama was justified in

modifying its federally-authorized program to regulate

more stringently the in-state disposal of hazardous waste

American Mining Congress v. EPA, 824 F.2d 1177 (D.C. Cir. 1987),

the court of appeals ruled that EPA’s definition of solid waste con-

travened the statutory definition insofar as “in-process secondary

materials” were concerned. Jd. at 1192-93. As the court put it,

Congress intended that “ ‘solid waste’ (and therefore EPA’s regu-

latory authority) be limited to materials that are ‘discarded’ by

virtue of being disposed of, abandoned, or thrown away.” Id. at

1193 (footnote omitted).

The item traded in commerce actually is the landfill disposal

capacity for hazardous wastes. Landfill capacity does not move in

interstate transactions, but commercial transactions attend the in-

terstate movement of hazardous wastes for ultimate landfill disposal.

16 Before 1980, the treatment, storage, and disposal of hazardous

waste was largely unregulated. Disposal facilities in place before

1980, when RCRA regulations first took effect, were allowed to oper-

ate under “interim status” until a final RCRA permit was obtained

under the federal rules or their state analog. RCRA § 3005(e), 42

U.S.C. § 6925(e) ; see 40 C.F.R. Part 265 (EPA regulations govern-

ing “interim status” facilities). As noted by EPA, pre-RCRA facili-

ties “are allowed to operate under certain less stringent conditions

and regulations on an interim basis until final permit determinations

are meade.” EPA Office of Solid Waste & Emergency Response, The

Nation’s Hazardous Waste Management Program at a Crossroads—

The RCRA Implementation Study, at 41 (July 1990),

and thereby better protect the safety, health, and welfare

of its residents and the state’s environment.

The current study of state hazardous waste import-

export activity performed by the National Governors’

Association (“NGA”) illuminates the severe imbalance

among states.’ The NGA study shows that Alabama is

one of the largest net importers of hazardous waste in

the entire nation, annually taking nearly half a_ billion

pounds of hazardous waste per year from other states.

NGA Capacity Assurance Study, supra n.10, at 14. Also

on a net basis, Louisiana annually receives a comparable

amount of hazardous waste. Jd. Similarly, South Carolina

holds the dubious distinction of being the fifth largest net

importer of hazardous waste, managing nearly a quarter

of a billion pounds of other states’ hazardous waste per

year. Id.

Contrary to the impression created by the Brief for the

United States as Amicus Curiae at 5, there are only 20

operational RCRA-permitted commercial landfill facilities

for hazardous waste, nationwide, located in 15 states. See

Testimony of P. Payne, president of Chemical Waste

Management, before the National Governors’ Association

Committee on Energy and Environment, February 2,

1992, reported in BNA Daily Environment Report, Feb-

ruary 4, 1992, at A-6 to A-7. Over the last 10 years,

only one new commercial landfill facility has been per-

mitted and become operational for hazardous waste. See

supra, p. 3 & n.6. Because only 15 states possess any

commercial landfill capacity for hazardous wastes, most

of the nation has exported, and continues to export, haz-

ardous waste for landfilling in other states.’* The fate

17 NGA Capacity Assurance Study, supra n.10, at 11-14 (partially

quoted, supra, p. 12 n.13).

18 Alabama’s effort to regulate the flow of hazardous waste into

the Emelle facility is entirely consonant with Congressional goals

of decreased reliance on landfill disposal:

The Congress finds with respect to the environment and health,

that—

of Alabama, South Carolina, and their companion states

reflects the irony of a failed regulatory regime: solely be

cause these states had sited landfill capacity for hazard-

ous wastes prior to implementation of the RCRA regula-

tions, they are being asked by Petitioner and others to

bear the brunt of the entire hazardous waste landfill dis-

posal burden on a long-term basis.

The capacity-assurance requirement of CERCLA § 104

bama, contrary to Congress’s intent. Congress expected

that this CERCLA mandate would remedy the inequities

posed by certain states’ unwillingness to confront the

NIMBY syndrome. In addressing the Conference Report

of the CERCLA amendments to the Senate on October 3,

1986, Senator Chafee was explicit:

This is not a new issue. In 1976, RCRA directed

the States to develop plans for the management of

their wastes, including hazardous wastes... .

Section 104 of Superfund already requires that

each State assure the availability of a RCRA-ap-

proved facility for management of materials removed

from a site before remedial action can begin. Un-

fortunately, that condition has been largely ignored

by EPA and the States.

(7) certain classes of land disposal facilities are not capable

of assuring long-term containment of certain hazardous wastes,

and to avoid substantial risk to human health and the environ-

ment, reliance on land disposal should be minimized or elimi-

nated, and land disposal, particularly landfill and surface im-

poundment, should be the least favored method for managing

hazardous wastes; and

(8) alternatives to existing methods of land disposal must be

developed since many of the cities in the United States will be

running out of suitable solid waste disposal sites within five

years unless immediate action is taken.

RCRA § 1002(b) (7) and (8), 42 U.S.C. §6901(b) (7) and (8).

Many states have enacted, or have pending some

form of siting legislation. . .. Merely having enacted

such legislation, however, will not satisfy the re-

quirement of this section [104(c) (9)]. Each State

must provide assurances that their legislative pro-

gram can work and will be used.

132 Cong. Rec. $14,924-25 (daily ed. Oct. 3, 1986)

(emphasis added).

By requiring in Section 104(c) (9) that each state assure

that it will have adequate capacity to dispose of hazard-

ous waste generated in that state, additicnal facilities

with new capacity would be sited notwithstanding the

NIMBY syndrome. Id."

Unfortunately, enactment of CERCLA § 104(c) (9) -

and implementation of the capacity-assurance require-

ment has not produced the desired result. EPA has fail-

19 Congress understood that importing states could refuse the

exporting state access to its facilities for purposes of meeting the

Section 104(c)(9) requirement. To qualify for Superfund assist-

ance, the exporting state would have the incentive to create new

capacity. EPA anticipated and endorsed this approach in CERCLA

guidance to the states:

Congress required exporting states to provide assurances

and to obtain interstate agreements, because political pressures

encourage states to export their wastes to other states rather

than to create available capacity .... By requiring (as a con-

dition for remedial actions) agreements between states regard-

ing future access to available interstate capacity, Congress

counterbalanced these political pressures in exporting states

with the political pressures in importing states that might

oppose continued receipt of such exports. An importing state

might refuse to enter into an agreement with an exporting

state, requiring the exporting state to create available capacity

through waste reduction or through siting new facilities, or to

enter into an agreement with other importing state to manage

these wastes.

Assurance of Hazardous Waste Capacity: Guidance to State Officials,

OSWER Directive No. 9471.00-01, at 3 (formerly No. 9010.00 (Dec.

1988) (emphasis added), supplemented by OSWER Directive No.

9471.00-02 (formerly 9010.00a (Oct. 1989)) and OSWER Directive

No. 9471.00-Ola (Apr. 15, 1991).

ed to use its powers under CERCLA or RCRA to require

that states permit additional disposal capacity. Indeed,

if the Agency’s position articulated in this and other re-

cent litigation were to be accepted, it would lead to the

stunning conclusion that states may effectively ban all

hazardous waste disposal in-state for “NIMBY” reasons;

such an effective ban would mandate reliance on exports

to South Carolina, Alabama, and other states with exist-

ing, pre-RCRA capacity. See Hazardous Waste Treat-

ment Council v. Reilly, 9388 F.2d 1390 (D.C. Cir. 1991).

On the other hand, the Agency’s litigation positions cor-

relatively would bar states like South Carolina, which

have permitted facilities, from implementing their ca-

pacity-assurance plans, even though South Carolina has

expressly reserved more capacity for disposal of out-of-

state waste than for locally-generated waste at these per-

mitted facilities. See Hazardous Waste Treatment Coun-

cil v. South Carolina, 945 F.2d 781 (4th Cir. 1991).

Surely this posture on the part of EPA is neither what

Congress provided in enacting RCRA §§ 3006 and 3009

and CERCLA § 104(c) (9), nor what the “dormant”

Commerce Clause commands.

B. Measured By A “Dormant” Commerce Clause Analysis

Or Statutory Criteria, Alabama’s Differential Fee Is

Tailored To Serve A Legitimate Public Purpose

The analytical framework for this case is in dispute.

The Alabama Supreme Court applied a “dormant” Com-

merce Clause test derived from Maine v. Taylor, 477

U.S. 131 (1986), focusing on whether a state statute

“serves legitimate local purposes that could not ade-

quately be served by available non-discriminatory alterna-

tives.” Appendix to Petition, at 43a, citing Maine v.

Taylor, 477 U.S. at 151-52. The briefs of Petitioner and

supporting amici emphasize and urge an analysis based

upon the “strictest scrutiny” of economic protectionist

measures. This case is not about economic protection,

however. Alabama is not seeking to “protect” its hazard-

ous waste landfill industry. And, as the brief for the

United States. as amicus curiae points out, this case

arises in a setting shaped almost entirely by the federal

regulatory regime established by RCRA and CERCLA.

Federal law plays such a large role that this should not

be a “dormant” Commerce Clause case at all. See infra,

p. 23.

In all events, strikingly absent from the briefs of the

Petitioner and supporting amici, including that of the

United States, is any reference to or recognition of the

central role played by the states in the regulation of ha-

zardous wastes. While RCRA provides a very detailed

federal regulatory scheme, Congress did not displace

state authority. It rather provided for integration of

state authority within the federal framework, which pro-

vides a regulatory floor for state action. The prominent

role given to state authority must be afforded significant

weight in any Commerce Clause analysis.

Congress has expressly provided that “the collection

and disposal of solid wastes should continue to be pri-

marily the function of State, regional and local agencies.”

RCRA § 1002(a) (4), 42 U.S.C. § 6901(a) (4). Section

3006(b) of RCRA provides that authorized state hazard-

ous waste management programs operate “in lieu of the

Federal program.” 42 U.S.C. § 6926(b), Appendix infra,

at la. In addition, RCRA § 3009 preserves state author-

ity against preemption by federal regulatory require-

ments where the state provisions are not “less stringent

than those authorized under [RCRA §§ 3001-3026] re-

specting the same matter.” Id. § 6929, Appendix infra,

at 2a.

Congress went further, moreover, and in RCRA

§ 3009, it preserved for the states the authority to regu-

late hazardous waste with provisions “which are more

stringent than those imposed by” federal law. Jd. (cap-

tioned “Retention of State Authority”). The House Re-

port of the bill that became RCRA identified this section

as “the key to the development and implementation of

the hazardous waste title.” H.R. Rep. No. 1491, 94th

Cong., 2d Sess., at 31, reprinted in 1976 U.S. Code Cong.

& Admin. News 6238, 6269. In that regard, the House

Committee Report observed that “federal preemption of

this problem is undesirable, inefficient, and damaging to

local initiative.’ Jd. at 38, 1976 U.S. Code. Cong. &

Admin. News at 6271. In testimony before Congress

preceding RCRA’s enactment, EPA endorsed RCRA’s

“emphasis on State primacy in terms of hazardous waste

regulatory program operations. We also believe that

strong State regulatory programs are the most. effective

way to assure appropriate management of hazardous

wastes.”””°

EPA has construed Sections 3006 and 3009 to provide

congressional authorization for the states to differentiate

in their treatment of in-state versus out-of-state waste,

and did so specifically when considering South Carolina’s

differential fee under 40 C.F.R. § 271.4(a):

More stringent requirements are expressly permitted

by RCRA Section 3009. These requirements may

have some adverse effect on interstate commerce.

Different requirements are permissible if they are

not inconsistent with the Federal program and ap-

proved State programs. Authorized States have

adopted many State requirements that are unlike the

requirements of other States and which, in some

eases, have an effect on the flow of wastes. The

Agency does not believe that the mere existence of

differences or disparities in treatment makes State

programs inconsistent per se. Congress expected that

States would not have identical programs and recog-

nized the importance of allowing States to experi-

ment with different requirements. Congress gave

EPA the authority to interpret the term “consistent” ;

20 Resource Recovery and Conservation Act of 1976: Hearings on

H.R. 14496 Before the Subcomm. on Transportation and Commerce

of the Committee on Interstate and Foreign Commerce, 94th Cong.,

2d Sess. 97-98 (1976) (Statement of Sheldon Meyers, Deputy As-

sistant Administrator for Solid Waste Management Programs, En-

vironmental Protection Agency).

—————

the Agency has interpreted the term in § 271.4 to

prevent unreasonable restrictions or impediments in

authorized programs.

50 Fed. Reg. at 46,439, Appendix infra, at 1la-12a (em-

phasis added).

EPA’s analysis of differential fees in the South Caro-

lina program-approval proceeding has two consequences

for this case. First, it shows that the “reasonableness”

test adopted by EPA in 40 C.F.R. § 271.4(a), and not

“dormant” Commerce Clause jurisprudence, should con-

trol. Compare Northeast Bancorp, Inc. v. Board of Gov-

ernors, 472 U.S. 159, 174 (1985); White v. Massachu-

setts Council of Constr. Employers, Inc., 460 U.S. 204,

213 (1983); Prudential Ins. Co. v. Benjamin, 328 U.S.

408, 421-27 (1946); with Wyoming v. Oklahoma, —U.S.

—, 112 S. Ct. 789, 802 (1992); South-Central Timber

Dev., Ine. v. Wunnicke, 467 U.S. 82, 90-91 (1984); New

England Power Co. v. New Hampshire, 455 U.S. 331,

340-43 (1982).*" But regardless of whether § 271.4(a)

21 The Alabama differential fee was adopted after EPA granted

final approval to the Alabama hazardous waste program, but that

dees not derogate from the validity of the provision under RCRA

or subject it to “dormant” Commerce Clause scrutiny rather than

40 C.F.R. § 271.4(a). The federal-state RCRA alliance is a dynamic

venture; an approved state program is not static. Changes to an

authorized program do not require express EPA authorization to

become effective, and all statutory or regulatory modifications or

supplements to the program operate “in lieu of the Federal pro-

gram,” 42 U.S.C. § 6926(b), Appendix infra, at 1a, unless and until

EPA authorization is withdrawn through administrative procedures.

Id. §6926(e); 40 C.F.R. §§ 271.22-.23. No such proceedings were

initiated by CWM prior to raising its challenge in the Alabama state

courts. If CWM had raised its claims before EPA, an ensuing de-

cision by EPA would have been reviewable in a federa! court of

appeals. RCRA § 7006(b), 42 U.S.C. § 6976(b). Petitioner’s choice

of forum should not alter the controlling law. :

Particularly where EPA has already addressed the validity of a

differential fee in light of RCRA §§ 3006(b) and 3009 and of EPA’s

own regulations, as it has in the case of South Carolina’s, Maine’s,

is thought to be controlling, EPA’s analysis of RCRA

Sections 3006(b) and 3009 evidences that states may

differentiate between in-state waste and out-of-state

waste. Therefore, petitioner’s and supporting amici’s

contention that the Alabama fee is unconstitutional sim-

ply because it “discriminates” between in-state and out-

of-state waste is wrong. Dogmatic and repetitive refer-

ences to language from City of Philadelphia v. New Jer-

sey, 437 U.S. 617 (1978), are quite beside the point given

the circumstances pertinent to this case.

The second implication evident from EPA’s analysis

in the South Carolina program-approval proceeding is

that hazardous waste, or, more properly, hazardous waste

landfill capacity, as an article of commerce operates in

a milieu governed by detailed regulation. This circum-

stance is by congressional design:

* Congress authorized states to regulate hazardous

waste more stringently than federal law does, ex-

plicitly to serve environmental purposes. RCRA

$ 3009, 42 U.S.C. § 6929, Appendix infra, at 2a.

* Congress declared that “reliance on land disposal

should be minimized or eliminated, and land dis-

and Ohio’s differential fees, that prior construction is entitled to

great weight. “[T]he court does not simply impose its own con-

struction on the statute, as would be necessary in the absence of

an administrative interpretation.” Chevron U.S.A. Inc. v. NRDC,

467 U.S. 837, 843 (1984) (footnotes omitted).

The amicus brief filed by the United States on behalf of EPA

may not revise or alter EPA’s interpretation expressed in regula-

tions and policy decisions. “Congress has delegated to the adminis-

trative official and not to appellate counsel the responsibility for

elaborating and enforcing statutory commands.” Investment Co.

Inst. v. Camp, 401 U.S. 617, 628 (1971). EPA itself has noted that

its Office of General Counsel and other “entities within EPA do not

appear to share a common focus regarding the RCRA program’s

goals and priorities,” as a result of which “the regions and states...

pay the price for this lack of integration.” EPA Office of Solid

Waste & Emergency Response, The Nation’s Hazardous Waste Man-

agement Program at a Crossroads—The RCRA Implementation

Study, at 16-17 (July 1990).

posal, particularly landfill [such as at Petitioner’s

Emelle facility] and surface impoundment, should

be the least favored method for managing hazard-

ous wastes” because such facilities “are not capa-

ble of assuring long-term containment of certain

hazardous wastes, and to avoid substantial risk to

human wealth and the environment.” RCRA

§ 1002(b) (7), 42 U.S.C. § 6901(b) (7) (emphasis

added).

* Congress understood that the failure to site and

permit new disposal facilities is not a market

failure but a regulatory result of the NIMBY syn-

drome, and Congress’s remedy was not to unleash

market forces but to require each state to assure

adequate capacity for disposal of its waste, which

it must do by demonstrating the availability of

facilities that are “within the State or outside the

State in accordance with an interstate agreement

or regional agreement or authority.” CERCLA

§ 104(c) (9) (B), 42 U.S.C. § 9604(c) (9) (B) (em-

phasis added).

The issue in this case thus is not whether the Alabama

statute will interfere with the market or lead to “Balkan-

ization.” In this particular area, fundamental market

principles were long ago bent far from their normal

shape by regulation. From the perspective of Alabama

and South Carolina, the Balkanization which has oc-

curred relates to burdens and has been escalated by

EPA’s tacit acceptance of the NIMBY syndrome. The

issue is whether Alabama has acted reasonably under the

circumstances (40 C.F.R. § 271.4(a)), or whether, as

elucidated in Maine v. Taylor, 477 U.S. 131 (1986), the

State’s action is “justified by a valid factor unrelated to

economic protectionism.” New Energy Co. of Indiana

v. Limbach, 486 U.S. 269, 274 (1987) (citing Maine v.

Taylor).

The Alabama Supreme Court demonstrated articulately

that the fee differentia] can withstand the elevated scru-

tiny of the test set out in Maine v. Taylor. The environ-

mental concerns motivating the legislation are substantial.

Given the failure of the existing regulatory regime to

site new post-RCRA landfill capacity for hazardous

wastes, and the failure of the CERCLA capacity-assur-

ance program to work a change in this situation, waste

imports can and do impose disparate burdens on states

which have existing landfill capacity. See, e.g., Na-

tional Solid Wastes Management Association v. Voinovich,

No. 91-3466 (6th Cir. March 4, 1992) (1992 U.S. App.

LEXIS 3500). Moreover, the State has “a legitimate

interest in guarding against imperfectly understood en-

vironmental risks, despite the possibility that they may

prove ultimately to be negligible.” Maine v. Taylor, 477

U.S. at 148.”

Landfilling of hazardous waste at the Emelle facility

in Alabama poses a serious threat, one which extends

well beyond the eventual closure of that facility. RCRA

has failed the State; CERCLA has failed the State; EPA

has failed the State. Under federal law, it is manifestly

appropriate for Alabama to exercise its authority under

federal statute to regulate the treatment, storage, and

disposal of hazardous waste within its borders. Alabama’s

differential fee on hazardous waste represents a measured

exercise of the state’s traditional police powers, narrowly

~ crafted to recompense special burdens Alabama bears for

hazardous waste landfill disposal at minimal cost to the

national economic union. Whether measured by 40 C.F.R.

§ 271.4(a) or Maine v. Taylor, the fee differential should

be sustained.

22In this instance, the risks are all too real, even though they

may be difficult to quantify. What is the cost, for example, of

stranding thousands of motorists in a huge traffic jam caused by

the spontaneous combustion of a truckload of hazardous waste?

See supra, pp. 9-10 n.11.

ee ey

CONCLUSION

For the reasons set forth above, and those set forth in

the Brief for the Respondents, the judgment of the Ala-

bama Supreme Court should be affirmed.

T. TRAVIS MEDLOCK

Attorney General

EDWIN E. EVANS

Chief Deputy Attorney General

JAMES PATRICK HUDSON

Deputy Attorney General

KENNETH P. WOoDINGTON

Senior Assistant Attorney

General

TREVA G. ASHWORTH

Senior Assistant Attorney

General

MARK R. ELAM

Senior Legal Counsel

Office of the Governor

STATE OF SOUTH CAROLINA

Post Office Box 11549

Columbia, SC 29211

(803) 734-3680

ROBERT T. STEPHEN

Attorney General

STATE OF KANSAS

2nd Floor, Kansas Judicial Center

Topeka, Kansas 66612-1597

PAUL VAN DAM

Utah Attorney General

236 State Capitol

Salt Lake City, Utah 84114

April 9, 1992

Respectfully submitted,

WALTON J. McLeop, III

General! Counsel

JACQUELYN S. DICKMAN

Assistant General Counsel

SAMUEL L. FINKLEA, III

Staff Counsel

SOUTH CAROLINA DEPARTMENT OF

HEALTH AND ENVIRON MENTAL

CONTROL

2600 Bull Street

Columbia, SC 29201

(803) 734-4910

CHARLES F. LETtTow *

MATTHEW D. SLATER

CLEARY, GOTTLIEB, STEEN &

HAMILTON

1752 N Street, N.W.

Washington, D.C. 20036

(202) 728-2700

RICHARD P. IEYouB

Attorney General

STATE OF LOUISIANA

Post Office Box 94095

Baton Rouge, Louisiana 70804

* Counsel of Record for Amicus

Curiae State of South Carolina

APPENDIX

RCRA Section 3006 (b), 42 U.S.C. § 6026 (b) :

§ 6926. Authorized State hazardous waste programs

(b) Authorization of State program

Any State which seeks to administer and enforce

a hazardous waste program pursuant to this sub-

chapter may develop and, after notice and opportu-

nity for public hearing, submit to the Administrator

an application, in such form as he shall require, for

authorization of such program. Within ninety days

following submission of an application under this

subsection, the Administrator shall issue a notice as

to whether or not he expects such program to be

Fe, authorized, and within ninety days following such

notice (and after opportunity for public hearing )

he shall publish his findings as to whether or not

the conditions listed in items (1), (2), and (3) below

have been met. Such State is authorized to carry out

such program in lieu of the Federal program under

this subchapter in such State and to issue and en-

force permits for the storage, treatment, or disposal

of hazardous waste (and to enforce permits deemed

to have been issued under section 6935(d) (1) of

this title) unless, within ninety days following sub-

mission of the application the Administrator notifies

. such State that such program may not be authorized

and, within ninety days following such notice and

after opportunity for public hearing, he finds that

‘ i (1) such State program is not equivalent to the Fed-

eral program under this subchapter, (2) such pro-

gram is not consistent with the Federal or State pro-

grams applicable in other States, or (3) such pro-

gram does not provide adequate enforcement of com-

pliance with the requirements of this subchapter.

In authorizing a State program, the Administrator

may base his findings on the Federal program in ef-

fect one year prior to submission of a State 8 applica-

tion or in effect on January 26, 1983, whichever is

later.

RCRA Section 3009, 42 U.S.C. § 6929:

§ 6929. Retention of State authority

Upon the effective date of regulations under this

subchapter no State or political subdivision may im-

pose any requirements less stringent than those au-

thorized under this subchapter respecting the same

matter as governed by such regulations, except that

if application of a regulation with respect to any

matter under this subchapter is postponed or en-

joined by the action of any court, no State or political

subdivision shall be prohibited he ge — 7 -

8 to the same aspect of s matter until suc

» cv such regulation takes effect. Nothing in this

chapter shall be construed to prohibit any State or

political subdivision thereof from imposing any re-

quirements, including those for site selection, which

are more stringent than those imposed by such regu-

lations. Nothing in this chapter (or an any regula-

tion adopted under this chapter) shall be construed

to prohibit any State from requiring that the State

be provided with a copy of each manifest used in

connection with hazardous waste which is generated

within that State or transported to a treatment, stor-

age, or disposal facility within that State.

40 C.F.R. § 271.4:

§ 271.4 Consistency.

To obtain approval, a State program must be con-

sistent with the Federal program and State programs

applicable in other States and in particular must

comply with the provisions below. For purposes of

this section the phrase “State programs applicable in

other States” refers only to those State hazardous

waste programs which have received final authoriza-

tion under this part.

(a) Any aspect of the State program which un-

reasonably restricts, impedes, or operates as a ban on

the free movement across the State border of haz-

ardous wastes from or to other States for treatment,

storage, or disposal at facilities authorized to oper-

ate under the Federal or an approved State program

shall be deemed inconsistent.

(b) Any aspect of State law or of the State pro-

gram which has no basis in human health or environ-

mental protection and which acts as a prohibition on

the treatment, storage or disposal of hazardous waste

in the State may be deemed inconsistent.

the requirements of this part, the State program

shall be deemed inconsistent.

Federal Register—Vol. 50, No. 217

Friday, November 8, 1985

Rules and Regulations

| 46437]

40 CFR Part 271

|[OSW-FRL-2921-6] :

South Carolina; Decision on Final Authorization of State

Hazardous Waste Management Program

AGENCY: Environmental Protection Agency.

ACTION: Notice of Final Determination on South Caro-

lina’s Application for Final Authorization.

SUMMARY: South Carolina has applied for Final Au-

thorization under the Resource Conservation and Re-

covery Act (RCRA). EPA has reviewed South Carolina’s

application and has reached a final determination that

South Carolina’s Hazardous Waste Program satisfies all

of the requirements necessary for Final Authorization.

Thus, EPA is granting Final Authorization to the State

to operate its program in lieu of the Federal program.

EFFECTIVE DATE: Final Authorization for South

Carolina, for purposes of judicial review, shall be effec-

tive at 1:00 p.m. Eastern time on November 22, 1985.

However, in accordance with § 271.20(e), this Notice

constitutes the Agency’s official decision to approve South

Carolina for Final Authorization.

FOR FURTHER INFORMATION CONTACT: Otis

Johnson Jr., Chief, Waste Planning Section, Residuals

Management Branch, Waste Management Division, U.S.

Environmental] Protection Agency, 345 Courtland Street

N.E., Atlanta, Georgia 30365, (404) 257-3016.

SUPPLEMENTARY INFORMATION:

I. Background

Section 3006 of the Resource Conservation and Re-

covery Act (RCRA) allows the Environmental Protection

Agency (EPA) to authorize State hazardous waste man-

agement programs to operate in the State in lieu of the

Federal program. To qualify for Final Authorization,

a State’s program must: (1) Be “equivalent” to th

Federal program, (2) be consistent with the Federal pro-

gram and other State programs, and (3) provide for

adequate enforcement (Section 3006(b) of RCRA, 42

U.S.C. 6226(b) [sic]). On July 23, 1984, South Carolina

submtted a complete application to obtain Final Author-

ization to administer a RCRA program. Un October 25,

1984, EPA published a tentative decision announcing its

intent to grant South Carolina Final Authorization. Fur-

ther background on the tentative decision appears at 49

FR 42959, October 25, 1984.

In the October 25 notice announcing the Agency’s

tentative determination, EPA announced the availability

of the State’s application for public review and comment

and the date of a public hearing on the application. The

public hearing was not held, since neither EPA nor the

South Carolina Department of Health and Environmental

Control received a significant show of interest in holding

the hearing. -

On March 5, 1985, the decision to grant final authoriza-

tion to South Carolina was temporarily postponed. At

that time, EPA decided to defer a final decision until

July 1985 to allow the State a reasonable period of time

to resolve identified issues.

Prior to EPA’s review of the State’s performance in

July 1985, the South Carolina Hazardous Waste Man-

agement Act (1935 Act No. 436) was amended to estab-

lish increased fees for disposal of hazardous waste. The

amendments passed in June 1985 changed section 44-56-

170 to raise the fee for land disposal of wastes generated

within the State from $5.00 to $13.00 per ton. For land

disposal of wastes generated outside the State, the fee

was raised from $7.50 per ton to either $18.00 per ton

or to the amount that would be charged for land disposal

by the State in which the wastes were generated, which-

ever is higher.

[46438] EPA determined that this statutory change

constituted a substantial program revision, and in ac-

cordance with 40 CFR 271.20(b), the Agency decided to

solicit public comment. On September 18, 1985 (50 FR

37385), EPA published a second notice of tentative deter-

mination to approve the State. In that notice, EPA high-

lighted the question of whether the South Carolina Haz-

ardous Waste Management Act Amendments rendered

the State program inconsistent with the Federal program

or approved State programs under RCRA.

The question to be settled before EPA granted final

authorization was whether the South Carolina fee sched-

ule rendered the State program inconsistent with the

Federal program and other State programs. Under

§ 271.4(a) a State treatment, storage or disposal at fa-

cilities authorized to operate under the Federal or an

approved State program ...”. [sic]

In the notice of tentative determination, EPA stated

that while higher fees for out-of-State wastes should not

be encouraged, the Agency did not have any evidence to

indicate that the new fees would unreasonably restrict,

impede, or operate as a ban on the transportation of haz-

ardous waste into the State. The only evidence before the

Agency at that time were South Carolina’s statements

that the fee imposed constitutes a “relatively small per-

centage” of the actual cost of disposal and that, in the

State’s view, it would not unreasonably restrict or im-

pede the movement of hazardous waste (50 FR 37386,

September 13, 1985). The Agency solicited comment on

whether the State law unreasonably restricts, impedes or

operates as a ban on the importation of hazardous waste,

under the consistency requirements of 40 CFR 271.4(a).

EPA received written comments and also held a public

hearing in Columbia, South Carolina.

II. Basis for EPA’s Decision to Grant Final Authoriza-

tion -

The Agency today is making a final determination that

the South Carolina fee schedule does not impose an un-

reasonable impediment or restriction or operate as a ban

on the free movement of hazardous waste under 40 CFR

271.4. The fee schedule is not inconsistent with the Fed-

eral program or approved State programs under this reg-

ulation or under RCRA. This section explains the reasons

for the Agency’s decision on this matter. Because this

was the only outstanding issue, the Agency is now able to

grant final authorization to the State.

A. EPA’s regulation

EPA adopted the present regulation at 40 CFR 271.4 (a)

on May 19, 1980 (see 45 FR 33395, 33465-66, May 19,

1980). The regulation states that any aspect which “un-

reasonably restricts, impedes or operates as a ban” is

deemed inconsistent.

In the preamble discussing § 271.4(a), EPA explained

the regulation as follows. The Agency stated that any

aspect of the program which operates as a ban on the

interstate movement of hazardous waste is automatically

inconsistent. The Agency noted that this position was

supported by a court decision, City of Philadelphia v. New

Jersey, 437 U.S. 617 (1978), which held unconstitutional

a statute banning transportation of certain wastes into

the State for disposal because it violated the commerce

clause of the Constitution. (This discussion is consistent

with that in the preamble to the proposed regulation (44

FR 34259, June 14, 1979).)

EPA did not discuss what criteria it would apply in

determining whether State programs unreasonably re-

strict or impede the free movement of hazardous waste.

However, it is clear from the regulation that EPA in-

tended “unreasonable restrictions or impediments” to

render State programs inconsistent. The question of

whether a State provision unreasonably restricts or im-

pedes the free movement of hazardous waste did not arise

in any final decision to grant RCRA final authorization

until South Carolina’s amended statute raised this issue.

B. The Agency’s Tentative Decision on South Carolina

Authorization

As noted above, EPA tentatively concluded that the

South Carolina statute did not render the State program

inconsistent under 40 CFR 271.4(a). In reaching this

conclusion, the Agency considered all available facts. It

appeared reasonably clear from the face of the statute

that the fee schedule was not a ban and that it did not

operate as a ban. The evidence before the Agency did

not indicate that the fee schedule had significantly affected

the flow of hazardous waste into the State. However, be-

cause the amended statute was a potentially significant

change to the State program which might affect authori-

zation under 40 CFR 271.4, the Agency solicited comment

on whether the fee schedule unreasonably restricts or

impedes the flow of hazardous waste into South Carolina.

C. Public Comment

Public comment, with one exception, supported EPA

authorization of the State program. Several commenters

did not address the question of the fee schedules but gen-

erally stated that South Carolina’s RCRA program was

supported by adequate legal authority and staffing and

therefore deserved authorization. The only land disposal

facility in South Carolina known to the Agency to accept

out-of-State hazardous waste and to pay the fees at issue

also generally supported authorization, but did not ad-

dress the question rasied [sic] by the fee schedule.

Several other commenters who favored authorization

argued that the fee schedule was reasonable and justified.

They provided a variety of rationales including that the

higher fees were appropriate: (1) To discourage land

disposal as it is enviornmentally [sic] the least desireable

[sic] form of disposal, (2) to raise money that might be

expended to address released [sic] from land disposal

units, (3) to discourage land disposal and thereby con-

serve the State’s limited land disposal resources, and (4)

to supplement State funds for monitoring compliance at

land disposal facilities accepting out-of-State wastes.

The State of South Carolina commented that the one

land disposal facility in South Carolina which accepts out-

of-State wastes charges $90.00 per ton for disposal.

First, the State noted that the new fee differential of

$5.00 per ton for out-of-State wastes represents but a

small percentage of this charge. The State believed that

this small amount would not discourage out-of-State gen-

erators from using the facility. Second, the State noted

that during the period of July to September of 1984 there

were 16,848 tons of out-of-State waste disposed at the

facility. During the same period in 1985, when the new

fee schedule was in place, there were 26,352 tons of out-

of-State waste disposed. The State cited this increase as

factual proof that the fee schedule has not had any ad-

verse impact on the amount of waste imported into the

State. The State reported that fees had been collected at

both the $18.00 rate and at higher rates. corresponding

to the fees of the States from which the wastes were

shipped. Third, the State noted that a fee differential,

including rates equivalent to those charged in the shipping

State, had existed for several years and that there has

been a continuing increase in the volume of wastes im-

ported into the State.

The Hazardous Waste Treatment Council was alone in

opposing authorization for South Carolina. The Council

did not dispute that the volume of imported waste had in-

10a

creased despite the higher fees. Rather, they believed

[16439] that the fee schedule discriminates on its face

against interstate commerce and therefore was an un-

constitutional and unreasonable restriction on the free

flow of waste. The Council argued that: (1) The dis-

parity in fees rendered the program “inconsistent” under

RCRA 3006(b) as it did not promote the essential uni-

formity among hazardous waste programs intended by

Congress, (2) the disparity in favor of in-State wastes

was unconstitutional and therefore was inconsistent un-

der RCRA 3006(b) and an unreasonable restriction or

impediment under § 271.4(a), and (3) discriminatory

statutes will frustrate RCRA objectives for a national

market for development of proper treatment and dispsoal

[sic] practices.

The Council stated that in promulgating 40 CFR 271.4,

EPA had adopted a constitutional test to determine what

is an unreasonable restriction and impediment. There-

fore, they argued that the unconstitutional statute vio-

lated § 271.4(a). They also argued that it would be too

difficult to assess whether there is in fact a significant

discrimination on a case-by-case basis.

EPA believes that these are the substantive comments

relating to the fee schedule and the Agency’s decision.

These and other comments are addressed in this notice

and in a separate comment and response document that

is available from EPA Region IV (address listed at the

front of this notice).

D. Application of §271.4(a) to South Carolina’s Fee

Schedule

EPA carefully evaluated the above comments in deter-

mining whether the South Carolina fee schedule was an

unreasonable restriction or impediment to the free move-

ment of hazardous waste.

, , : 4

The Agency has determined that in applying § 271.

(a) to State laws and regulations, EPA should look to

lla

whether the State provision in fact has or is likely to

have a significant adverse effect on the follow [sic] of

hazardous waste into or out of the State. Thus, the un-

reasonableness of the restriction or impediment under

§ 271.4(a) should be measured by the impact of [sic]

likely impact on the actual flow of waste. In applying

this test, EPA will look to all relevant factors. The

Agency will primarily focus on any available evidence

on the quantities of wastes that are imported and ex-

ported.

The Agency believes that this test is a reasonable in-

terpretation of its regulation and does not conflict with

section 3006 of RCRA. Section 2/1.4(a) does not by its

terms prohibit any restrictions or impediments, only

those that are unreasonable. Reasonable restrictions or

impediments can logically include those that do not sig-

nificantly decrease the flow of hazardous waste. There-

fore, EPA does not agree that any disparity in treatment

between in-State and out-of-State wastes is per se unrea-

sonable. Contray to the statement by the Hazardous

Waste Treatment Council, the preamble adopting this

regulation did not state that EPA was relying on the

Constitutional test for impremissible [sic] restraints on

interstate commerce as the basis for finding restrictions

or impediments unreasonable, The Agency is not re-

quired to adopt the Constitutional test for impediments

or restrictions in interpreting its own regulations, and

declines to do so here.

EPA also believes that its interpretation of the regula-

tion accords with RCRA. RCRA section 2006 [sic] re-

quires EPA to approve State programs unless it finds

they are; [sic] (1) Not equivalent, (2) not consistent,

or (3) lacking adequate enforcement authority. To be

equivalent, States must adopt a set of basic statutes

and regulations that are equivalent to EPA’s. In addi-

tion, States may adopt requirements which are more

stringent or different than EPA’s authority. More strin-

12a

gent requirements are expressly permitted by RCRA sec-

tion 3009. These requirements may have some adverse

effect on interstate commerce. Different requirements

are permissible if they are not inconsistent with the

Federal program and approved State programs. Au-

thorized States have adopted many State requirements

that are unlike the requirements of other States and

which, in some cases, have an effect on the flow of wastes.

The Agency does not believe that the mere existence of

differences or disparities in treatment makes State pro-

grams inconsistent per se. Congress expected that States

would not have identical programs and recognized the

importance of allowing States to experiment with dif-

ferent requirements. Congress gave EPA the authority

to interpret the term “consistent”; the Agency has in-

terpreted the term in § 271.4 to prevent unreasonable re-

strictions or impediments in authorized programs. Noth-

ing in RCRA section 3006(b) or any other section of

RCRA requires the Agency to adopt the Constitutional

test as the test for consistency or unreasonable restric-

tions or impediments.

The Agency does not believe that higher fees for out-

of-State wastes or other discriminatory practices should

be encouraged. EPA is concerned that such fees may dis-

courage wastes from going to the most appropriate fa-

cility for treatment or disposal.

However, it appears that South Carolina’s fee schedule

does not have a significant adverse effect on the flow of

hazardous waste into or out of the State. All available

evidence supports this conclusion. The fact that the fee

differential is small in most cases indicates that the out-

of-State fee probably will not restrict a significant vol-

ume of waste. Moreover, the fact that the volume of out-

of-State wastes increased significantly after the higher

fees were imposed suggests that there is not a significant

adverse impact on the flow of wastes. The fees clearly do

not operate as a ban in this case. In addition, some fees

haat tiie

ee ee ee ee

13a

were collected at the higher rate based on the fees of

other States. Finally, the volume of wastes imported into

the State has increased over the years despite a fee dif-

ferential which included fees based on those in the State

of origin. Although it is unknown how much more waste

might have entered South Carolina if there were no fee

differential, there is no information to suggest that a

significant volume might be affected. The Agency dis-

agrees that this test (which looks to the facts of each

case) is too difficult to apply.

Several comments related to the reasons for the State’s

adoption of the fee schedule and one addressed the con-

cern that discriminatory practices would frustrate RCRA

objectives for a national market for proper treatment

and disposal practices. EPA acknowledges that the State

offered several reasons for the fee differential. However,

the Agency believes that the reasons for the ado}*.on of

the fee or any purported benefits are not generally rele-

vant to the question of reasonableness of the impediment

or restriction. If a provision has little or no impact on

the flow wastes, EPA does not believe that the actual

motives or benefits resulting from the provision should

preclude authorization. EPA is also concerned that dif-

ferent provisions for in-State and out-of-State wastes may

frustrate the best possible treatment and disposal of

wastes. As noted above, RCRA intended that State pro-

grams be generally uniform for purposes of encouraging

proper treatment and disposal and EPA has interpreted

this consistency requirement to deny authorization where

restrictions or impediments are unreasonable. It does not

require EPA to deny authorization merely because in-

State and out-of-State wastes are regulated somewhat

differently by the State. In auy event, there is no evi-

dence that proper [46440] treatment or disposal is ad-

versely affected by this statute; the volume of wastes into

South Carolina has increased.

In applying this facts and circumstances test, EPA is

aware that circumstances may change over time. The

l4a

Agency will therefore periodically reassess provisions

which may unreasonably impede the flow of wastes, in-

cluding this fee schedule of South Carolina. In addition,

any provisions adopted by States seeking authorization

and which impose or result in restrictions or impediments

on the flow of wastes will be subjected to careful scrutiny.

If an authorized State adopts restrictions or impediments

that may affect the flow of hazardous wastes, EPA may

find that such changes are significant revisions to the

States’ program and provide public notice and comment

under § 271.21 on their potential impacts on interstate

transportation of wastes. If the restrictions or impedi-

ments are found to be unreasonable, they would be

grounds for withdrawal of the authorized program under

§ 271.22.

For the reasons discussed above, EPA has concluded

that South Carolina’s fee schedule is not an unreasonable

impediment or restriction on the flow of waste into the

State and that authorization is not precluded by § 271.4

(a). Nevertheless, the Commissioner of the South Caro-

lina Department of Health and Environmental Control

has informed the Agency that he will recommend to the

South Carolina Legislature that it repeal that aspect of

the fee schedule which imposes higher fees based on rates

charged by the State of origin. EPA supports this effort.

South Carolina is not authorized by the Federal govern-

ment to operate the RCRA program on Indian lands and

ths [sic] authority will remain with EPA.

Final authorization is hereby granted to South Caro-

lina to operate its hazardous waste management program

in lieu of the Federal program subject to the limitation

on its authority by the Hazardous and Solid Waste

Amendments of 1984 (Pub.L. 98-616, November 8, 1984).

South Carolina now has the responsibility for permitting

treatment, storage, and disposal facilities within its bor-

ders and carrying out the other aspects of the RCRA

program. South Carolina also has primary enforcement

rm ieee te te CNG he erty ve

a es

;

’

15a

authority, although EPA retains the right to conduct

inspections and make information requests under section

3007 of RCRA and to take enforcement action under

sections 3008, 3013, and 7003 of RCRA.

Prior to the Hazardous and Solid Waste Amendments

(HSWA) amending RCRA, a State with final authoriza-

tion administered its hazardous waste program entirely

in lieu of EPA. EPA’s regulations no longer applied in

the authorized State, and EPA could not issue permits

for any facilities the State was authorized to permit.

Now, however, under section 3006( g) of RCRA, 42

U.S.C. 6226(g), the new Federal requirements and pro-

hibitions imposed by the HSWA take effect in authorized

States at the same time as they take effect in non-

authorized States. EPA is directed to carry out those

requirements and prohibitions, including the issuance of

full or partial permits, in authorized States until the

State is granted authorization to do so.

As a result of HSWA, there will be a dual State-

Federal regulatory program in South Carolina. To the

extent the authorized State program is unaffected by

the HSWA, the State program will operate in lieu of

the Federal program. EPA will administer and enforce

the portions of the HSWA in South Carolina until the

State receives authorization to do so. Among other

things, this will entail the issuance of Federal RCRA

permits for those areas in which the State is not yet

authorized. Once the State is authorized to implement a

HSWA requirement or prohibition, the State program in

that area will operate in lieu of the Federal program.

Until that time the State will assist EPA’s implementa-

tion of the HSWA under a Cooperative Agreement.

Federal HSWA requirements that are more stringent

than the State’s program apply in South Carolina. Any

State requirement that is more stringent than a Federal

HSWA provision also remains in effect. (South Carolina

l6a

is not being authorized now for any requirement imple-

menting the HSWA.)

EPA has published a Federal Register notice that ex-

plains in detail the HSWA and its effect on authorized

States. Refer to 50 FR 2872-28755, [sic] July 15, 1985.

Compliance With Executive Order 12291

The Office of Management and Budget has exempted

this rule from the requirements of section 3 of Executive

Order 12291.

Certification Under the Regulatory Fexibility Act

Pursuant to the provisions of 5 U.S.C. 605(b), I hereby

tertify that this authorization will not have a significant

economic impact on a substantial number of entities.

This authorization effectively suspends the applicability of

certain Federal regulations in favor of South Carolina’s

program, thereby eliminating duplicative requirements

for handlers of hazardous waste in the State. It does

not impose any new burdens on small entities. This rule,

therefore, does not require a_ regulatory flexibility

analysis.

List of Subjects in 40 CFR Part 271

Hazardous waste, Indian lands, Reporting and record-

keeping requirements, Waste treatment and disposal, In-

tergovernmental relations, Penalties, Confidential busi-

ness information.

Authority: This notice is issued under the authority of

sections 2002(a), 3006, and 7004(b) of the Soid [sic]

Waste Disposal Act as amended 42 U.S.C. 6912(a),

6926, 6974(b), and EPA Delegation 8-7.

Dated: November 5, 1985

Jack E. Ravan,

Regional Administrator.

[FR Doc. 85-26814 Filed 11-7-85; 8:45 am]

17a

[SEAL]

UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY

Washington, D.C. 20460

Dec. 23, 1988

THE ADMINISTRATOR

MEMORANDUM

SUBJECT: Policy Regarding Hazardous Waste Manage-

ment Capacity and RCRA Consistency Issues

To: Regional Administrators

In recent months we have focused on two parallel, but

overlapping, issues in the hazardous waste management

area. One issue has been the development of guidance

for the State hazardous waste capacity assurance process

called for by Section 104(c)(9) of the Comprehensive

Environmental Response, Compensation, and Liability

Act (CERCLA). The other has been the issue of EPA’s

approach to State actions which may be inconsistent with

the federal Resource Conservation and Recovery Act

program.

This past June a task force on these RCRA consistency

and CERCLA capacity issues presented their findings to

me. In addition, we have now completed our guidance to

the States for the CERCLA capacity assurance process.

Based on an evaluation of the findings and guidance, |

now want to present to you EPA’s policy in the area of

RCRA consistency and CERCLA capacity assurance.

First, we will rely on the CERCLA process as our

primary vehicle for ensuring that States have adequate

capacity to manage their hazardous wastes. As our

CERCLA capacity guidance indicates, the States must

provide EPA with a good knowledge of their current

and projected waste amounts and management practices,

including correlation of imports and exports between

States; description of waste minimization programs; and

18a

discussions of laws and regulations which may affect the

state’s ability to manage wastes. EPA must approve

these State assurances in order for EPA to provide Super-

fund remedial actions in a State after October 17, 1989.

Secondly, the Regions should use the procedures for

withdrawal of authorized State RCRA programs in the

ease of failure to use the RCRA uniform manifest sys-

tem, or for unreasonable restrictions on interstate waste

movements. The CERCLA capacity assurance process

should be used as an initial response to State actions

which prohibit waste management within State bound-

aries without environmental justification. States may be

able to resolve issues related to such actions themselves

during the interstate discussions that the CERCLA proc-

ess will foster. The Regions should, therefore, decide

whether to initiate proceedings to withdraw State RCRA

programs for prohibitory actions after determining that

the CERCLA process has proven ineffective.

I believe the above dual approach to be a positive one

allowing us to work within the legal authority provided,

and to assist States in developing needed waste manage-

ment capacity.

/s/ Lee M. Thomas

LEE M. THOMAS

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.