WASHINGTON -- The Supreme Court yesterday asked the federal government's top lawyer to give an opinion on the constitutionality of Alabama's hazardous waste fees, which are higher for waste generated outside the state than for waste produced within Alabama.

The Solicitor General's response to the court, expected within the next several months, could heavily influence whether the justices decide to hear arguments in the dispute, Chemical Waste Management Inc. v. Hunt. The court often seeks the federal government's views when it is uncertain whether cases merit review.

The case, which comes as municipalities are grappling with how to get rid of toxic wastes, is being closely watched because of its potential national ramifications.

Out-of-State Fee Challenged

Chemical Waste Management, which operates the country's largest hazardous waste facility in Emelle, Ala., is challenging a 1990 state law that imposes a $72-perton fee on waste generated out of state but disposed within alabama's borders. The fee is in addition to a base levy of $26.50 per ton imposed on all waste disposed at Alabama facilities.

Because the $72-per-ton fee applies only to wastes produced out of state, Chemical Waste Management argues, the fee is unconstitutional.

The firm alleges that the fee violates the Constitution's commerce clause, which delegates to Congress sole authority to regulate interstate trade. The Supreme Court has long interpreted the clause to mean states cannot erect barriers, such as discriminatroy taxes, to the free flow of goods and services across state lines.

Alabama officials concede the $72 charge discriminates against out-of-state waste but insist the levy is "not simple economic protectionism." Gov. Guy Hunt, in legal briefs recently submitted to the Supreme Court, said the levy is "a legitimate measure to protect public safety, health, and the environment."

Gov. Hunt cited several recent Supreme Court precedents to bolster his view, including the court's ruling in a 1988 case, New Energy Co. v. Limbach. In that case, the court said states "may validate a statute that discriminates against interstate commerce by showing that it advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives."

But Chemical Waste Management lawyers countered that the Supreme Court imposes a high burden on states in proving they have a good reason to impose discriminatory fees and taxes. For example, in Hughes v. Oklahaoma, a 1979 case, the court said such levies must be subjected to "the strictest scrutiny" to ascertain legitimate local purposes and "the absence of non-discriminatory motives."

In one landmark case involving the volatile issue of hazardous waste disposal, the court in 1978 ruled in the City of Philadelphia v. New Jersey that New Jersey could not bar disposal of out-of-state wastes within its borders while at the same time permitting disposal of in-state wastes.

The court in that case said the commerce clause does not allow states to discriminate "against articles of commerce coming from outside the state unless there is some reason, apart from their origin, to treat them differently." Concluding that there was no reason to distinguish between out-of-state and instate wastes, the court found the law "clearly impermissible under the commerce clause."

Other High Court Action

In other action yesterday, the Supreme Court let stand a federal appeals court ruling shielding a municipally owned cable television service from antitrust lawsuits.

The case, Paragould Cablevision Inc. v. City of Paragould, Ark., arose when city voters in 1986 authorized the Paragould Light and Water Commission to set up a municipally owned cable television system to compete with Cablevision.

In 1989, voters approved the issuance of $3.2 million of general obligation bonds to finance construction of the new cable provider. The bonds are secured by revenues from the cable operation and, if necessary, by tax increases.

Cablevision argues that city officials threatened a tax increase to pay off the bonds if the new city-owned cable provider did not gain at least 60% of the city cable market. According to Cablevision, those threats, among other things, constituted predatory and anticompetitive behavior inconsistent with federal law.

A federal appeals court sided with the city, and the U.S. Court of Appeals for the Eighth Circuit affirmed the lower court ruling.

Earlier this year, the Supreme Court in City of Columbia, S.C., v. Omni Outdoor Advertising Inc. said municipalities generally are shielded from suits stemming from federal antitrust law. However, the court said "this immunity does not necessarily obtain where the state acts not in a regulatory capacity but as a commercial participant in a given market."

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