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Syllabus

CHEMICAL WASTE MANAGEMENT, INC. v. HUNT,

GOVERNOR OF ALABAMA, ET AL.

CERTIORARI TO THE SUPREME COURT OF ALABAMA

No. 91-471. Argued April 21, 1992—Decided June 1, 1992 Petitioner, Chemical Waste Management, Inc., operates a commercial haz

ardous waste land disposal facility in Emelle, Alabama, that receives both in-state and out-of-state wastes. An Alabama Act imposes, inter alia, a fee on hazardous wastes disposed of at in-state commercial facilities, and an additional fee on hazardous wastes generated outside, but disposed of inside, the State. Petitioner filed suit in state court, requesting declaratory relief against respondent state officials and seeking to enjoin the Act's enforcement. The trial court declared, among other things, that the additional fee violated the Commerce Clause, finding that the only basis for the fee is the waste's origin. The State Supreme Court reversed, holding that the fee advanced legitimate local purposes that could not be adequately served by reasonable nondiscriminatory

alternatives. Held:

1. Alabama's differential treatment of out-of-state waste violates the Commerce Clause. Pp. 339–349.

(a) No State may attempt to isolate itself from a problem common to the several States by raising barriers to the free flow of interstate commerce. Philadelphia v. New Jersey, 437 U. S. 617; Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources, post, p. 353. The State Act's additional fee facially discriminates against hazardous waste generated outside Alabama, and the Act has plainly discouraged the full operation of petitioner's facility. Such a burdensome tax imposed on interstate commerce alone is generally forbidden and is typically struck down without further inquiry. However, here the State argues that the additional fee serves legitimate local purposes. Pp. 339–343.

(b) Alabama has not met its burden of showing the unavailability of nondiscriminatory alternatives adequate to preserve the local interests at stake. See Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 353. Alabama's concern about the volume of waste entering the Emelle facility could be alleviated by less discriminatory means—such as applying an additional fee on all hazardous waste disposed of within Alabama, a per-mile tax on all vehicles transporting such waste across state roads, or an evenhanded cap on the total ton

Syllabus

nage landfilled at Emelle—which would curtail volume from all sources. Additionally, any concern touching on environmental conservation and Alabama citizens' health and safety does not vary with the waste's point of origin, and the State has the power to monitor and regulate more closely the transportation and disposal of all hazardous waste within its borders. Even possible future financial and environmental risks to be borne by Alabama do not vary with the waste's State of origin in a way allowing foreign, but not local, waste to be burdened. Pp. 343–346.

(c) This Court's decisions regarding quarantine laws do not counsel a different conclusion. The additional fee may not legitimately be deemed a quarantine law because Alabama permits both the generation and landfilling of hazardous waste within its borders and the importation of additional hazardous waste. Moreover, the quarantine laws upheld by this Court "did not discriminate against interstate commerce as such, but simply prevented traffic in noxious articles, whatever their origin.” Philadelphia v. New Jersey, supra, at 629. This Court's decision in Maine v. Taylor, 477 U. S. 131—upholding a state ban on the importation of baitfish after Maine showed that such fish were subject to parasites foreign to in-state baitfish and that there were no less discriminatory means of protecting its natural resources—likewise offers no respite to Alabama, since here the hazardous waste is the same regardless of its point of origin and adequate means other than overt discrimination meet Alabama's concerns. Pp. 346-348.

2. On remand the Alabama Supreme Court must consider the appropriate relief to petitioner. See, e. g., McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business Regulations,

496 U. S. 18, 31. Pp. 348–349. 584 So. 2d 1367, reversed and remanded.

WHITE, J., delivered the opinion of the Court, in which BLACKMUN, STEVENS, O'CONNOR, SCALIA, KENNEDY, SOUTER, and THOMAS, JJ., joined. REHNQUIST, C. J., filed a dissenting opinion, post, p. 349.

Andrew J. Pincus argued the cause for petitioner. With him on the briefs were Kenneth S. Geller, Evan M. Tager, Fournier J. Gale III, H. Thomas Wells, Jr., James T. Banks, and John T. Van Gessel.

Bert S. Nettles argued the cause for respondents. With him on the brief were William D. Little, Assistant Attorney General of Alabama, William D. Coleman, Jim B. Grant, Jr., J. Wade Hope, Alton B. Parker, Jr., J. Mark Hart, and Mark D. Hess.

Opinion of the Court

Edwin S. Kneedler argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Starr, Acting Assistant Attorney General Hartman, Deputy Solicitor General Wallace, Harriet S. Shapiro, Peter R. Steenland, Jr., Anne S. Almy, Louise F. Milkman, and Gerald H. Yamada.*

JUSTICE WHITE delivered the opinion of the Court.

Alabama imposes a hazardous waste disposal fee on hazardous wastes generated outside the State and disposed of at a commercial facility in Alabama. The fee does not apply to such waste having a source in Alabama. The Alabama

* Briefs of amici curiae urging reversal were filed for American Trucking Associations, Inc., by Daniel R. Barney, Robert Digges, Jr., and Walter Hellerstein; and for the Hazardous Waste Treatment Council et al. by Stuart H. Newberger, Ridgway M. Hall, Jr., Clifton S. Elgarten, David Case, and Bruce Parker.

Briefs of amici curiae urging affirmance were filed for the State of New York by Robert Abrams, Attorney General, Jerry Boone, Solicitor General, and David A. Munro, Assistant Attorney General; for the State of South Carolina et al. by T. Travis Medlock, Attorney General of South Carolina, 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, Walton J. McLeod III, Jacquelyn S. Dickman, Samuel L. Finklea III, Charles F. Lettow, and Matthew D. Slater, Robert T. Stephen, Attorney General of Kansas, Paul Van Dam, Attorney General of Utah, and Richard P. Ieyoub, Attorney General of Louisiana; for the National Governors' Association et al. by Richard Ruda and Michael G. Dzialo; and for the State of Ohio et al. by Lee Fisher, Attorney General of Ohio, Mary Kay Smith, Assistant Attorney General, and Nancy J. Miller, Chris Gorman, Attorney General of Kentucky, and Stan Cox, Assistant Attorney General, Linley E. Pearson, Attorney General of Indiana, Robert T. Stephan, Attorney General of Kansas, Richard P. Ieyoub, Attorney General of Louisiana, Frank J. Kelley, Attorney General of Michigan, Tom Udall, Attorney General of New Mexico, Mark W. Barnett, Attorney General of South Dakota, Paul Van Dam, Attorney General of Utah, Joseph B. Meyer, Attorney General of Wyoming, and Charles W. Burson, Attorney General of Tennessee.

Opinion of the Court

Supreme Court held that this differential treatment does not violate the Commerce Clause. We reverse.

I

Petitioner, Chemical Waste Management, Inc., a Delaware corporation with its principal place of business in Oak Brook, Illinois, owns and operates one of the Nation's oldest commercial hazardous waste land disposal facilities, located in Emelle, Alabama. Opened in 1977 and acquired by petitioner in 1978, the Emelle facility is a hazardous waste treatment, storage, and disposal facility operating pursuant to permits issued by the Environmental Protection Agency (EPA) under the Resource Conservation and Recovery Act of 1976 (RCRA), 90 Stat. 2795, as amended, 42 U. S. C. $ 6901 et seq., and the Toxic Substances Control Act, 90 Stat. 2003, as amended, 15 U. S. C. § 2601 et seq. (1988 ed. and Supp. II), and by the State of Alabama under Ala. Code $ 22–30–12(i) (1990). Alabama is 1 of only 16 States that have commercial hazardous waste landfills, and the Emelle facility is the largest of the 21 landfills of this kind located in these 16 States. Brief for National Governors' Assn. et al. as Amici Curiae 3, citing E. Smith, EI Digest 26–27 (Mar. 1992).

The parties do not dispute that the wastes and substances being landfilled at the Emelle facility "include substances that are inherently dangerous to human health and safety and to the environment. Such waste consists of ignitable, corrosive, toxic and reactive wastes which contain poisonous and cancer causing chemicals and which can cause birth defects, genetic damage, blindness, crippling and death.”i 584

1 As used in RCRA, 42 U. S. C. $6903(5), the term “hazardous waste" means: "a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may

(A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or

Opinion of the Court

So. 2d 1367, 1373 (Ala. 1991). Increasing amounts of out-ofstate hazardous wastes are shipped to the Emelle facility for permanent storage each year. From 1985 through 1989, the tonnage of hazardous waste received per year has more than doubled, increasing from 341,000 tons in 1985 to 788,000 tons by 1989. Of this, up to 90% of the tonnage permanently buried each year is shipped in from other States.

Against this backdrop Alabama enacted Act No. 90-326 (Act). Ala. Code $$ 22–30B-1 to 22–30B-18 (1990 and Supp. 1991). Among other provisions, the Act includes a "cap" that generally limits the amount of hazardous wastes or substances that may be disposed of in any 1-year period, and the amount of hazardous waste disposed of during the first year under the Act's new fees becomes the permanent ceiling in subsequent years. Ala. Code $ 22–30B-2.3 (1990). The cap applies to commercial facilities that dispose of over 100,000 tons of hazardous wastes or substances per year, but only the Emelle facility, as the only commercial facility operating within Alabama, meets this description. The Act also imposes a "base fee” of $25.60 per ton on all hazardous wastes and substances disposed of at commercial facilities, to be paid by the operator of the facility. Ala. Code $ 22– 30B-2(a) (Supp. 1991). Finally, the Act imposes the “additional fee” at issue here, which states in full:

“For waste and substances which are generated outside of Alabama and disposed of at a commercial site for

“(B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed."

RCRA directs the EPA to establish a comprehensive "cradle to grave" system regulating the generation, transport, storage, treatment, and disposal of hazardous wastes, $$ 6921-6939b, which includes identification and listing of hazardous wastes, $ 6921. At present, there are more than 500 such listed wastes. See 40 CFR pt. 261, subpt. D (1991).

2 "Hazardous substance(s)” and “hazardous waste(s)” are defined terms in the Act, $822-30B-1(3) and 22-30B-1(4), but these definitions largely parallel the meanings given under federal law.

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