338
Opinion of the Court
So. 2d 1367, 1373 (Ala. 1991). Increasing amounts of out-of-state 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 2 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, §§ 22-30B-1(3) and 22-30B-1(4), but these definitions largely parallel the meanings given under federal law.
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