ELR Citation: ELR 20171
No(s). s. 1901043 et al (Ala. Jul 11, 1991)

The court holds that an Alabama statute does not violate the U.S. or Alabama Constitutions by imposing a base fee on hazardous waste disposed of at in-state commercial sites, an additional fee on out-of-state hazardous waste disposed of at those sites, and a cap on the amount of hazardous waste that may be disposed of at commercial sites handling in excess of 100,000 tons during a specified year. The court first holds that the base fee does not violate the Commerce Clause of the U.S. Constitution, because it regulates evenhandedly and without regard to origin. Further, the state has a legitimate interest in imposing fees on commercial hazardous waste facilities to address the serious financial, environmental, and other risks they create. That most of the customers for the Alabama site owned by the company challenging the statute are out-of-state generators does not establish discrimination against interstate commerce. Also, the court observes that it is difficult to imagine how the state's objectives could be accomplished in ways that have a lesser impact on interstate activities.

The court next holds that the base fee does not violate the Equal Protection Clause of the U.S. Constitution or similar provisions of the Alabama Constitution. The court holds that the statute is subject to the lenient rational relationship test because the base fee does not involve a suspect class or a fundamental right. The court rejects the company's challenge that it has been singled out because the statute's base fee applies only to it. No evidence suggests that the statute will not apply to commercial hazardous waste facilities that are sited in Alabama in the future. Further, the legislature's differential treatment between commercial hazardous waste facilities and noncommercial facilities is rationally related to legitimate state interests. The evidence at trial established several reasons for differentiation. The court further holds that the base fee does not violate the Due Process Clause, because it is reasonable in function and the burden imposed is not excessively heavy.

The court holds that the statute's cap provision does not violate the Commerce Clause of the U.S. Constitution. The cap regulates evenhandedly to effectuate a legitimate local interest. The state has a clear and legitimate interest in conserving its natural resources, protecting the health and safety of its citizens and the environment surrounding the site, and extending the site's life for the benefit of in-state and out-of-state waste generators. The cap also furthers Alabama's legitimate interest in controlling health and safety risks by regulating the amount of waste being transported on the state's highways and to its landfills. Finally, any burden that the cap might place on interstate commerce is speculative, because the cap limits the amount of waste in successive years to the amount landfilled during the 1990-1991 benchmark period.

The court holds that the cap provision is not preempted by the Resource Conservation and Recovery Act (RCRA), the Toxic Substances Control Act, or the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The cap is consistent with what Congress had in mind when it passed RCRA—reducing the amount of landfilled waste—and furthers rather than frustrates that purpose. Also, RCRA expressly allows state actions or regulations that are more stringent than RCRA, and CERCLA places its capacity assurance burden on the state generating the waste, not on the state importing it. The court next holds that the cap provision does not violate the Due Process Clause, because the restrictions on waste disposal are related to the state's goal of preserving and managing landfill space and in protecting the health and safety of its citizens. Further, the state's reasons for treating hazardous waste buried in commercial facilities differently from industrial waste buried on site are rational.

The court holds that the cap provision does not violate the Contracts Clause of the U.S. Constitution, because the company challenging the provision has not shown that the cap has impaired its existing contracts. Also, the law was designed to promote a legitimate public purpose and is based on reasonable conditions. The court holds that the cap does not violate the Takings Clause, because the cap has not effected a taking. The statute advances legitimate state interests and has not made the facility's continued operation commercially impracticable.

The court holds that the statute does not violate a provision of the Alabama Constitution prohibiting revenue bills from being passed during the last five days of a legislative session. Although the statute was passed within the last five days of a session, it is not a general revenue bill, but a specific measure.

The court next holds that the statute's additional fee provision does not violate the Commerce Clause of the U.S. Constitution. The statute serves a legitimate local interest that cannot be adequately served by reasonable nondiscriminatory alternatives. Further, the provision was not enacted for the purpose of economic protectionism. Finally, the court holds that the governor of Alabama has standing to raise the issue of the constitutionality of the cap provision.

A concurring judge would hold that the additional fee provision does not violate the Commerce Clause until the U.S. Supreme Court holds that hazardous waste is an article of commerce protected by the Commerce Clause.

Counsel for Appellant
Bert S. Nettles, Alton B. Parker Jr., Kenneth O. Simon
Spain, Gillon, Grooms, Blan & Nettles
2117 2nd Ave. N., Birmingham AL 35203
(205) 328-4100

Counsel for Appellee
Fournier J. Gale III, H. Thomas Wells Jr.
Maynard, Cooper, Frierson & Gale
1901 6th Ave. N., Ste. 2400, Birmingham AL 35203
(205) 254-1000