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National Solid Wastes Management Ass'n v. Alabama Dep't of Envtl. Management

ELR Citation: 20 ELR 21316
Nos. No. 90-7047, 910 F.2d 713/30 ERC 1793/(11th Cir., 08/08/1990) Rev'd

The court rules that the "Holley Bill," an Alabama statute that prohibits importation of hazardous waste shipments from states without capacity assurance plans under §104(c)(9) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and two sets of Alabama regulations prohibiting land disposal of untreated wastes and requiring hazardous waste generators to obtain Alabama's approval before shipping wastes there, are unconstitutional. The court first holds that the Holley Bill violates the Commerce Clause of the U.S. Constitution. Because hazardous waste is an object in commerce, it merits Commerce Clause protection. The Holley Bill, however, erects an impermissible barrier against interstate trade in waste, does not regulate evenhandedly, and is a protectionist measure not based adequately on a legitimate local concern. Moreover, the Holley Bill is not required for Alabama to comply with CERCLA §104(c)(9)'s capacity assurance requirement, since Alabama may create new disposal capacity within the state, enter into interstate or regional agreements allowing Alabama to use capacity in other states, or contract with private waste management facilities. The court holds that the Holley Bill is not a quarantine law that discriminates among types of waste or degrees of dangerousness. Instead, the Holley Bill discriminates among waste streams only on the basis of origin. As such, it allows Alabama to hoard its disposal capacity by closing its borders to some, but not all, states and imposes on out-of-state generators the burden of conserving Alabama's remaining hazardous waste disposal capacity. The court concludes that the Holley Bill cannot be upheld in the absence of express congressional authorization to restrict the free movement of hazardous wastes across Alabama's borders.

The court next holds that two sets of Alabama hazardous waste regulations regarding land disposal and preapproval, not enacted to implement the Holley Bill, are unconstitutional. Alabama's regulations prohibiting land disposal of untreated wastes fail to allow the same variances as those granted by the Environmental Protection Agency and thus violate the supremacy clause of the U.S. Constitution. Similarly, regulations requiring hazardous waste generators to obtain Alabama's approval before shipping wastes there place an impermissible burden on interstate commerce and thus violate the Constitution's Commerce Clause. Criteria for approval or disapproval are undefined, and delays in the approval process can effectively bar waste disposal.

[The district court's decision is published at 20 ELR 20603.]

Counsel for Plaintiffs/Appellants
Fournier J. Gale
Maynard, Cooper, Frierson & Gale
2400 AmSouth/Harbert Plaza, Birmingham AL 35203
(205) 254-1000

Counsel for Defendants/Appellees
Bert Nettles
Spain, Gillon, Grooms, Blan & Nettles
The Zinszer Bldg., 2117 Second Ave. N., Birmingham AL 35203
(205) 328-4100

Before EDMONDSON, Circuit Judge, and HILL* and HENDERSON, Senior Circuit Judges.