National Solid Wastes Management Association v. The Alabama Department Of Environmental ManagementNational Solid Wastes Management Association v. The Alabama Department Of Environmental Management
Kaye K. Houser, Sirote & Permutt, P.C., Birmingham, Ala., for Hazardous Waste Treatment Council.
Bert Nettles, Alton B. Parker, Jr., Kenneth O. Simon, Spain, Gillon, Grooms, Blan & Nettles, Birmingham, Ala., for defendants-appellees.
Anne S. Almy, Asst. Atty. Gen., Land & Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., amicus curiae, for plaintiffs-appellants.
Roger C. Zehntner, John T. Van Gessel, Chemical Waste Management, Inc., Oak Brook, Ill., for Chemical Waste Management.
E. Dennis Muchincki, Chief, Office of Atty. Gen., Environmental Enforcement Section, Columbus, Ohio, for amicus curiae, State of Ohio.
Appeal from the United States District Court for the Northern District of Alabama.
EDMONDSON, Circuit Judge:
The United States’ largest and Alabama‘s only commercial hazardous waste management facility is located at Emelle, Alabama. The owner and operator of this facility, Chemical Waste Management, Inc. (“ChemWaste“), along with the National Solid Wastes Management Association, a trade association representing the waste management industry, brought this action seeking declaratory and injunctive relief, against the Alabama Department of Environmental Management; Leigh Pegues, Director of the Department; and Guy Hunt, Governor of Alabama (collectively referred to as “defendants” or “Alabama“).
The suit challenges
Plaintiffs challenge the Alabama legislative and administrative acts on two grounds: that the acts are preempted by federal laws and regulations, and that the acts violate the commerce clause of the United States Constitution.1 The district court granted summary judgment for defendants, finding the challenged actions to be constitutional. 729 F.Supp. 792. We have plenary review over the district court‘s decision. See Buxton v. City of Plant City, Fla., 871 F.2d 1037, 1040 (11th Cir.1989).
In deciding this case, our job is not to make policy, but to interpret the federal legislation and regulations to determine Congress‘s intent and to interpret Alabama‘s legislative and administrative acts to determine whether they are consistent with the Constitution and the federal environmental statutory scheme. We recognize that serious problems associated with hazardous waste management plague our nation; but whatever our own views may be about the effectiveness of what Congress or Alabama has done, we can only apply the law. We accordingly vacate the district court‘s grant of summary judgment for defendants on the Holley Bill and on the regulations requiring preapproval because those acts violate the commerce clause. We vacate summary judgment for defendants on the regulations that require pretreatment, to the extent those regulations are dissimilar from regulations promulgated by the Environmental Protection Agency (“EPA“), because Congress has preempted Alabama‘s actions.
A. BACKGROUND
In 1980, the United States Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
“A critical step in the implementation of a rational, safe hazardous waste program is the creation of new [hazardous waste disposal] facilities.” 132 Cong.Rec. S14,924 (daily ed. Oct. 3, 1986) (statement of Sen. Chafee). Because Congress perceived that few states had developed programs to assure continued disposal capacity in the long run, Congress amended CERCLA in 1986 by enacting the Superfund Amendments and Reauthorization Act (“SARA“), Pub.L. No. 99-499, 100 Stat. 1613 (codified in scattered sections of 10, 26 & 42 U.S.C.). “Congress was concerned that certain states, because of political pressures and public opposition, were not able to create and to permit sufficient facilities within their borders to treat and securely dispose of (or manage) the amounts of wastes produced in those states.” Office of Solid Waste and Emergency Response, U.S. EPA, Assurance of Hazardous Waste Capacity: Guidance to State Officials [hereinafter “EPA Guidance Doc.“], at 2 (Dec.1988). See S.Rep. No. 11, 99th Cong., 1st Sess. 22 (1985) (“Pressures from local citizens place the political system in an extremely vulnerable position.... The broader social need for safe hazardous waste management facilities often has not been strongly represented in the ... process [of creating new facilities]. A common result has been ... no significant increase in hazardous waste capacity over the past several years.“).
The provision of SARA at issue in this case, section 104(c)(9),
Congress recognized that--because of geological factors or for other reasons--every state may not be able to create new disposal facilities within its borders and will not be able to dispose of its own wastes within its own borders for the next twenty years. SARA contemplates that a state may meet its section 104(c)(9) capacity assurance requirements by planning to use other states’ disposal facilities and privately owned disposal facilities. 132 Cong.Rec. S14,924 (daily ed. Oct. 3, 1986) (statement of Sen. Chafee). Section 104(c)(9) provides that a state may base its capacity assurance plan on such facilities if the state has entered into an agreement for the use of those facilities.
Under authority of this bill, Alabama has issued a “blacklist” which, on September 13, 1989 (the effective date of the Holley Bill), precluded Emelle from accepting hazardous wastes from twenty-two states and the District of Columbia.8 Between January 1, 1989 and October 1, 1989, Emelle received wastes from seventeen of the twenty-two states on the Holley Bill‘s blacklist. In addition, Emelle has ongoing contracts with waste generators in most of the banned states.
B. THE COMMERCE CLAUSE
Plaintiffs contend that the Holley Bill violates the commerce clause of the United States Constitution.
1. Object of Commerce
“All objects of interstate trade merit Commerce Clause protection; none is excluded by definition at the outset.” City of Philadelphia v. New Jersey, 437 U.S. 617, 622, 98 S.Ct. 2531, 2534, 57 L.Ed.2d 475 (1978). But when the dangers inhering in an object‘s movement “far outweigh[]” its worth in interstate commerce, a state can prohibit transportation of the object across state lines. Id. For example, the Supreme Court has said that a state may restrict interstate movement of an object when, on account of the object‘s “existing condition, [it] would bring in and spread disease, pestilence, and death.” Bowman v. Chicago & Northwestern R. Co., 125 U.S. 465, 489, 8 S.Ct. 689, 700, 31 L.Ed. 700 (1888) (striking down state prohibition on interstate movement of liquor); see also Clason v. State of Indiana, 306 U.S. 439, 442, 59 S.Ct. 609, 611, 83 L.Ed. 858 (1939) (upholding Indiana‘s prohibition against interstate transportation of large dead animals because “obvious purpose of the enactment [was] to prevent the spread of disease and the development of nuisances“).
Although the hazardous waste involved in this case may be innately more dangerous than the solid and liquid waste involved in City of Philadelphia,9 we cannot say that the dangers of hazardous waste outweigh its worth in interstate commerce. Congress has defined hazardous waste as “a solid waste ... which ... may ... cause, or significantly contribute to a significant increase in mortality or an increase in serious ... illness, or ... pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.”
In concluding that hazardous waste is an object of commerce, we follow precedent of this circuit. See State of Alabama v. United States EPA, 871 F.2d 1548, 1555 n. 3 (11th Cir.1989) (“To the extent plaintiffs also seem to assert injury based on the out-of-state nature of these wastes [PCBs and other toxic wastes], the Supreme Court has already held that the commerce clause bars such a distinction.” (citing City of Philadelphia )), cert. denied sub nom. Alabama ex rel Siegelman v. United States EPA, --- U.S. ----, 110 S.Ct. 538, 107 L.Ed.2d 535 (1989). Accord Hardage v. Atkins, 582 F.2d 1264, 1266 (10th Cir.1978) (“controlled industrial waste,” defined in Oklahoma statute as refuse products that are toxic to human, animal, aquatic, or plant life, is within purview of commerce clause). In addition, this conclusion comports with the Holley Bill, which banned the transport of hazardous wastes into Alabama only from certain states, not from all states, thereby suggesting hazardous waste is not inherently too dangerous to be a product in commerce.
2. Barrier to Interstate Commerce
Because hazardous waste is an object of commerce and because the Constitution gives Congress the power to regulate the interstate movement of hazardous waste, a state‘s restriction of that movement is subject to constitutional scrutiny. See City of Philadelphia, 437 U.S. at 622-23, 98 S.Ct. at 2535. To determine whether the Holley Bill erects a barrier to interstate commerce, we follow the test set out by the Supreme Court in City of Philadelphia:
[W]here simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected. The clearest example of such legislation is a law that overtly blocks the flow of interstate commerce at a State‘s borders. But where other legislative objectives are credibly advanced and there is no patent discrimination against interstate trade, the Court has adopted a much more flexible approach, the general contours of which were outlined in Pike v. Bruce Church, Inc. [397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174]
Id. at 624, 98 S.Ct. at 2535 (citations omitted). The crucial inquiry, therefore, is whether the Holley Bill is basically a protectionist measure, or whether it is based on legitimate local concerns with effects on interstate commerce that are only incidental. Id. at 624, 98 S.Ct. at 2536.
Second, while the Alabama legislature made a finding that large volumes of hazardous waste entering the state increased the likelihood of accidents and the risk to Alabama‘s citizens and environment, see Ala.Act. No. 89-788, Alabama did not ban the shipment of all hazardous wastes into the state, but only shipments from certain states. “[T]he evil of protectionism can reside in legislative means as well as legislative ends.” City of Philadelphia, 437 U.S. at 626, 98 S.Ct. at 2536-37. Even if Alabama‘s purpose in enacting the Holley Bill was to protect human health and the environment in Alabama, that purpose “may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently.” Id. at 626-27, 98 S.Ct. at 2537. Plaintiffs presented testimony undisputed by defendants that the types of wastes accepted at the Emelle facility did not vary based upon the states in which the wastes were generated. The Holley Bill plainly distinguishes among wastes based on their origin, with no other basis for the distinction.
Because Alabama‘s law is a protectionist measure not based adequately on a legitimate local concern, the district court was wrong to apply the Pike v. Bruce Church, Inc. balancing test. The Holley Bill does not regulate “evenhandedly” and its effects on interstate commerce are not merely incidental. See Pike, 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970). On its face, the Holley Bill discriminates among out-of-state waste generators and imposes on these generators the burden of conserving Alabama‘s remaining hazardous waste disposal capacity. We reject the district court‘s conclusion that, because Alabama closed its borders to only some states and not all states, Alabama is not hoarding its disposal capacity. Alabama has attempted to “isolate itself from a problem common to many by erecting a barrier against the movement of interstate trade.” City of Philadelphia, 437 U.S. at 628, 98 S.Ct. at 2538.
Contrary to defendants’ arguments, the Holley Bill does not fall within an exception to the commerce clause carved out by the so-called “quarantine cases.” In these cases, the Supreme Court upheld state legislation that facially discriminated against out-of-state commerce involving articles that were highly dangerous. For example, the Court upheld a Maine statute that prohibited the importation of a certain type of baitfish not native to Maine because the baitfish contained a parasite that could have a serious detrimental effect on Maine‘s fisheries. Maine v. Taylor, 477 U.S. 131, 106 S.Ct. 2440, 91 L.Ed.2d 110 (1986). Such state laws do not discriminate against interstate commerce, however, but “simply prevent[] traffic in noxious articles, whatever their origin.” City of Philadelphia, 437 U.S. at 629, 98 S.Ct. at 2538.
Alabama‘s selective ban on out-of-state hazardous waste is no quarantine law. Alabama did not ban hazardous wastes from all other states on the ground that the wastes were dangerous to some human health or environmental aspect which Alabama has a right to regulate. Alabama‘s ban does not distinguish on the basis of type of waste or degree of dangerousness, but on the basis of the state of generation. The Holley Bill discriminates against interstate commerce.
A state statute that erects a barrier to interstate commerce may nonetheless be upheld where Congress authorizes the state to regulate in such a manner. “Where state or local government action is specifically authorized by Congress, it is not subject to the Commerce Clause even if it interferes with interstate commerce.” White v. Massachusetts Council of Constr. Employers, Inc., 460 U.S. 204, 103 S.Ct. 1042, 75 L.Ed.2d 1 (1983). “Congress may redefine the distribution of power over interstate commerce by permitting the states to regulate the commerce in a manner which would otherwise not be permissible.” South-Central Timber Devel., Inc. v. Wunnicke, 467 U.S. 82, 87-88, 104 S.Ct. 2237, 2240, 81 L.Ed.2d 71 (1984). Such congressional intent or authorization for states to affect interstate commerce, however, must be “expressly stated” and “unmistakably clear.” Id. at 91, 104 S.Ct. at 2242; see also White, 460 U.S. at 212-13, 103 S.Ct. at 1046-47 (city‘s requirement that certain percentage of work on public construction projects be done by local labor did not violate commerce clause because federal urban development programs “affirmatively sanctioned” improved opportunities for the poor, minorities, and unemployed). So, our task at this point is to determine whether Congress has authorized Alabama to erect its barrier to the interstate movement of hazardous wastes.
Defendants contend that SARA‘s section 104(c)(9) effected a redistribution of power over interstate commerce. According to defendants, the SARA amendments to CERCLA gave the states more responsibility for hazardous waste management, including an obligation to develop increased treatment and disposal capacity. But nothing in SARA evidences congressional authorization for each state to close its borders to wastes generated in other states to force those other states to meet federally mandated hazardous waste management requirements.10 SARA places the burden of making capacity assurances for future hazardous waste management on the generating state and imposes a sanction on that state for failure to satisfy its obligation.11 Congress has not, in our opinion, authorized Alabama to restrict the free movement of hazardous wastes across Alabama‘s borders. See State of Alabama v. United States EPA, 871 F.2d at 1555 n. 3 (“Although Congress may override the commerce clause by express statutory language, it has not done so in enacting CERCLA.” (citing Wunnicke, 467 U.S. at 82, 104 S.Ct. at 2237)). If Congress intended to allow the states to restrict the interstate movement of hazardous wastes as Alabama has tried to do, Congress could (and still can) plainly say so.12
II. THE CHALLENGED REGULATIONS
A. BACKGROUND
While CERCLA is designed to cleanup unsafe hazardous waste sites, the federal Resource Conservation and Recovery Act of 1976 (“RCRA“),
For the expressed purpose of facilitating enforcement of the LDR regulations, Alabama adopted the challenged pre-approval regulations,
The pre-approval requirement allows Alabama to identify the wastes being disposed and to determine whether the wastes must be pretreated in accordance with the LDR regulations. The pre-approval regulations apply equally to wastes generated in Alabama and out of state, but no limitation is expressed on how long Alabama can wait before issuing its approval decision.
As a result of the LDR regulations, plaintiff ChemWaste claims that it has been forced to refuse shipments of waste from at least seven CERCLA or RCRA sites that are undergoing cleanups, even though it would have been able to accept those wastes at Emelle under the federal regulations. ChemWaste says that it has been forced to refuse new requests for waste disposal, as well as to refuse to fulfill its obligations under preexisting waste disposal contracts.
The district court below, without expressly discussing the challenged regulations, concluded that the regulations were constitutional. The district court‘s Memorandum Opinion addressed only the Holley Bill, but the court‘s Final Order said that all three challenged actions were constitutional. On appeal, Alabama made it clear that the challenged regulations are separate from and were not enacted to implement the Holley Bill.14 After conducting a separate consideration of plaintiffs’ claims regarding the regulations, we disagree with the district court. To the extent that the LDR regulations fail to allow the same variances as those granted by EPA, the regulations are preempted and thus violate the supremacy clause. The independent effect of the pre-approval regulations, which require all waste generators to obtain the state‘s pre-approval before disposing of wastes at commercial facilities in Alabama, places an impermissible burden on interstate commerce. These pre-approval regulations are, therefore, also unconstitutional.15
“[W]hen a state‘s exercise of its police power is challenged under the Supremacy Clause, ‘we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’ ” Ray v. Atlantic Richfield Co., 435 U.S. 151, 157, 98 S.Ct. 988, 994, 55 L.Ed.2d 179 (1978). No such congressional purpose exists to preempt the entire field of interstate waste management, “either by express statutory command, or by implicit legislative design.” City of Philadelphia, 437 U.S. at 621 n. 4, 98 S.Ct. at 2534 n. 4 (citations omitted). RCRA expressly says that “[n]othing in this chapter shall be construed to prohibit any State ... from imposing any requirements ... which are more stringent than [RCRA].”
But in the 1984 amendments to RCRA, Congress did preempt Alabama‘s specific action of implementing a state land disposal ban that omits the variances ordered by EPA. In the RCRA amendments, Congress granted the EPA Administrator authority to establish an effective date for the land disposal ban different from the effective date which would have otherwise applied under the RCRA amendments.
Congress granted EPA alone the power to grant variances from the effective date for certain types of wastes because the lawmakers intended for the assessment of available pretreatment capacity to be made on a nationwide basis: “The available capacity determination is to be done on a national basis. Otherwise, different regions of the country would be receiving varying degrees of protection and could be used as a dumping grounds for the rest of the country.” S.Rep. No. 284, 98th Cong., 1st Sess. 19 (1983). When promulgating its regulations concerning the variances, EPA clearly stated the respective roles of EPA and the states: “The Administrator of EPA is solely responsible for granting variances to the effective dates [of the land disposal ban] because capacity determinations must be made on a nationwide basis.” 53 Fed.Reg. 31,137, at 31,203 (Aug. 17, 1988). Alabama‘s LDR regulations attempt to “regionalize” pretreatment requirements, action which Congress expressly disapproved. See S.Rep. 284, 98th Cong., 1st Sess. 19 (1983). These regulations may not be lawfully enforced.
C. PRE-APPROVAL REGULATIONS
The pre-approval regulations supplement the LDR regulations: the pre-approval regulations require waste generators to obtain Alabama‘s approval before disposing of wastes at commercial facilities in Alabama. These regulations place an impermissible burden on interstate commerce.
We begin by recognizing that the pre-approval regulations apply equally to in-state and out-of-state waste generators. The regulations state that “[e]ffective November 30, 1989, all generators ... must have approval for disposal by the Department, prior to disposal of any given waste stream.”
Where the challenged state action does not on its face discriminate against interstate trade, we apply a balancing test to determine if the challenged acts violate the commerce clause: “Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” Pike, 397 U.S. at 142, 90 S.Ct. at 847. If we find a legitimate local purpose, “the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.” Id.
Because the regulations impose substantial economic burdens on both intrastate and interstate commerce, the local benefits must be great for these regulations to be valid. Alabama‘s only formally stated reason for adoption of the regulations--and the only reason argued to this court--was to facilitate enforcement of the LDR regulations, which are themselves unenforceable. We must conclude that the pre-approval regulations are too burdensome when compared to the local benefit and, therefore, invalidate the regulations as contrary to the Constitution.
III. CONCLUSION
Minimizing the dangers to public health and the environment created by uncontrolled and untreated hazardous wastes is an important task facing society. But Alabama‘s statute banning wastes selectively, based on state of origin, and the state‘s substantially burdensome pre-approval regulations cannot stand in the face of the Constitution‘s commerce clause. However honorable and well intentioned Alabama‘s leaders might be in coming to grips with environmental problems, “it is the duty of the courts to guard vigilantly against any needless intrusion” on “the protection afforded [interstate commerce] by the federal Constitution.” Bowman, 125 U.S. at 492, 489 S.Ct. at 702. In addition, Alabama‘s regulation of hazardous waste land disposal is preempted by “the clear and manifest purpose of Congress” that EPA have the power to grant variances from the effectiveness of the land disposal ban on a nationwide basis. In such a case, “[u]nder the Constitution ... the state law must yield to the federal.” Jones v. Rath Packing Co., 430 U.S. 519, 543, 97 S.Ct. 1305, 1318, 51 L.Ed.2d 604 (1977). The Constitution, here specifically the commerce and supremacy clauses, may not be encroached upon, even in an attempt to do something good for the environment.
We VACATE summary judgment for defendants, REMAND to the district court, and--because no material issues of fact remain--instruct the district court to enter summary judgment for plaintiffs.