Opposition Brief — Environmental Defense Fund, Inc. v. Wheelabrator Technologies, Inc.

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No. 91-506

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In the Supreme Court

OF THE

United States

OCTOBER TERM, 1991

ENVIRONMENTAL DEFENSE FUND, INC.

Petitioner,

VS.

WHEELABRATOR TECHNOLOGIES INC. and

WESTCHESTER RESCO COMPANY, L.P.,

Respondents.

| BRIEF IN OPPOSITION TO

_ PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

JOHN G. KOELTL

(Counsel of Record)

DANIEL G. MURPHY

ANDREA OSER

DEBEVOISE & PLIMPTON

475 Third Avenue

New York, New York, 10022

Of Counsel:

HAROLD HIMMELMAN

DAVID M. FRIEDLAND

BEVERIDGE & DIAMOND

1350 I Street, N.W.

Washington, D.C. 20005

Bowne of Los Angeles, Inc., Law Printers. (213) 627-2200

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No. 91-506

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1991

ENVIRONMENTAL DEFENSE FUND, INC.

Petitioner,

VS.

WHEELABRATOR TECHNOLOGIES INC. and

WESTCHESTER RESCO COMPANY, L.P.,

Respondents.

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

JOHN G. KOELTL

(Counsel of Reeord)

DANIEL G. MURPHY

ANDREA OSER

DEBEVOISE & PLIMPTON

875 Third Avenue

New York, New York, 10022

Of Counsel:

HAROLD HIMMELMAN

DaviID M. FRIEDLAND

BEVERIDGE & DIAMOND

1350 I Street, N.W.

Washington, D.C. 20005

Bowne of Los Angeles, Inc., Law Printers. (213) 627-2200

i

COUNTERSTATEMENT OF

QUESTIONS PRESENTED

1. Did the Court of Appeals properly affirm the Dis-

trict Court judgment that Section 3001(i) of the Re-

source Conservation and Recovery Act (“RCRA”)

excludes all waste manageinent activities of qualifying

resource recovery facilities, including the generation and

disposal of ash, from the hazardous waste regulations of

Subtitle C of RCRA?

2. Did the Court of Appeals properly affirm the Dis-

trict Court judgment that a resource recovery facility that

otherwise qualifies for the exclusion from hazardous

waste regulation set forth in Section 3001(i) of RCRA

does not fail to qualify for such exclusion because it is

allowed to accept hazardous waste delivered by so-called

small quantity generators?

il

DESIGNATION OF CORPORATE RELATIONSHIPS

Pursuant to Supreme Court Rule 29.1, respondents

state that Waste Management, Inec., a Delaware corpora-

tion, holds a 57 percent interest in respondent Wheel-

abrator Technologies Ine.

ill

TABLE OF CONTENTS

COUNTERSTATEMENT OF QUESTIONS PRE-

RE CACC ores Vactaleen ates eee Caen aeres

DESIGNATION OF CORPORATE RELATION-

og er er er eee er rte ere rye rire

py VOR Boog tyy i ly yt | ee

RESPONDENTS’ BRIEF IN OPPOSITION .....

COUNTERSTATEMENT OF THE CASE ........

REASONS FOR DENYING THE WRIT.........

I.

EDF's Petition Fails to Raise Any Issue Warranting

Bupreme Court Heview .. 0. cccccccvevencececs

I].

The Second Circuit Properly Interpreted Section

BOG) GEC UND 6 0 6k ce SN cceeen Ree

A. The appellate court properly concluded that the

Facility’s residue ash was exempt from regula-

tion under Section 3001(i) ..................

B. The appellate court properly concluded that a

facility does not jeopardize its Section 3001 (i)

exclusion by accepting waste from a small quan-

CO SE 6 coke ceeds ase eee

LITCRMEUEE Cn ob nena eseeeuedunteneeeer ere

Page

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TABLE OF AUTHORITIES

Cases

Page

Environmental Defense Fund, Inc. v. Wheelabrator

Technologies Inc., 931 F.2d 211 (2d Cir. 1991) 4

Environmental Defense Fund, Inc. v. City of Chi-

cago, 727 F. Supp. 419 (N.D. Ill. 1989) ..... ne ae

Environmental Defense Fund, Inc. v. Wheelabrator

Technologies Inc., 725 F. Supp. 758 (S.D.N.Y.

io cas Fen a oe oe ae os ae EES 4,8, 9, 10,11

Statutes

ri COE 5. 5 ce -5 ony sb bh Uke sees teow es passim

Supreme Court Rule 10.1(e) ... 0... ccesecenss 6

Legislative and Administrative Materials

S. Rep. No. 284, 98th Cong., Ist Sess. 61 (1983) 8,9

H. Rep. No. 101-952, 101st Cong., 2d Sess. 392

5 hoo oie bee ioe cee yeaheah aes i)

H.R. Conf. Rep. No. 11338, 98th Cong., 2d Sess. 79

ng Ua aa a 5 hi9'6 aes te MAR OEE x

rk keer ss van ee ek enews ss 5

45 Fed. Reg. 33,099 (May 19, 1980) ............ 7,11

45 Fed. Reg. 33,120 (May 19, 1980) (codified as

amended at 40 C.F.R. § 261.4(b)(1)) ......... 6,7

No. 91-506

In the Supreme Court

OF THE

United States

OCTOBER TERM, 199]

ENVIRONMENTAL DEFENSE FUND, INC.

Petitioner,

VS.

WHEELABRATOR TECHNOLOGIES INC. and

WESTCHESTER RESCO COMPANY, L.P.,

Respondents.

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

The petition of Environmental Defense Fund, Ine.

(“EDF’’) raises no issue of general importance for this

Court. The United States Court of Appeals for the Second

Cireuit unanimously affirmed the judgment of the United

States District Court for the Southern District of New

York for the reasons stated by the District Court in its

“thorough and well reasoned’” summary judgment

opinion.

The opinion below found that ash residue from the

Westchester County Resource Recovery Facility (the

bo

Facility”) in Peekskill, New York should not be regu-

lated as a hazardous waste under the Resource Conserva-

tion and Recovery Act (“RCRA”). Ash from the Facility

will therefore continue to be disposed of in a specially

designed and permitted landfill in accordance with the

strict regulations of the New York State Department of

Environmental Conservation.

Although EDF does not mention it, on November 15,

1990, after the District Court decision in this ease, Presi-

dent Bush signed the Clean Air Act Amendments of 1990,

which provide, among other things, that ash residue

cannot be regulated as a hazardous waste for two years.

This two-year moratorium is intended to provide Con-

gress with an opportunity to address the disposal of ash

in the context of its expected reauthorization of RCRA.

Although Congress indicated that it did not intend the

legislation to affect this case and another case on the

same issue on appeal from a federal district court in

Chicago (which came to precisely the same conclusion as

the district and appellate courts in this case), the morato-

rium assures that the appellate court decision in this case

will have no prospective effect. Hence, there is no issue of

general importance for this Court to address.

COUNTERSTATEMENT OF THE CASE

Respondents Westchester Resco Company, L.P. and

Wheelabrator Technologies Ine. (collectively “Whee-

labrator’) own and operate the Facility, which is located

in Peekskill, New York. The Facility burns municipal

solid waste and generates electricity, thereby reducing

the volume of waste requiring landfill disposal and help-

ing to reduee dependence on imported oil for the genera-

tion of electricity. It is exactly the kind of commercially

viable resource recovery facility that Congress stated it

intended to encourage when it enacted Section 3001 (i) of

RCRA — the provision at issue in this case.

Ash remaining after the combustion process is disposed

of at the Sprout Brook ash residue disposal site, a lined

landfill with a leachate collection system and ground-

water monitoring wells that is operated by the County of

Westchester, New York, and is permitted and closely

regulated by the New York Department of Environmental

Conservation (‘DEC’). The State of New York has,

through DEC regulations and related interpretations,

consistently taken the position that the ash should not be

regulated as a hazardous waste, and may be disposed of

in this specially designed and permitted landfill.

EDF commenced this litigation on January 27, 19838,

alleging that Wheelabrator does not comply with the

hazardous waste requirements of Subtitle C of RCRA in

handling the ash. EDF simultaneously initiated a similar

suit in the Northern District of Illinois against the City of

Chicago, which owns and operates a resource recovery

facility. See Environmental Defense Fund, Inc. v. City of

Chicago, 727 F. Supp. 419 (N.D. Ill. 1989).

Wheelabrator moved for dismissal or summary judg-

ment on the grounds that Section 3001(i1) of RCRA

(codified at 42 U.S.C. § 6921 (i) ), which “clarified” EPA’s

household waste exclusion, specifically exc!udes from haz-

ardous waste regulations the ash from a resource recovery

facility if the facility complies with the section's

requirements.

In a thorough decision rendered on November 21, 1989,

the Hon. Charles Haight agreed with Wheelabrator and

held that Section 3001(i) of RCRA — the “Clarification

of household waste exclusion’ — applies to exclude all of

the waste management activities of qualifying resource

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recovery facilities, including the “generation” of ash,

from the hazardous waste regulations of Subtitle C of

RCRA. 725 F. Supp. at 764-70; Pet. App. at 31-55.’ The

Court also held that acceptance by the Facility of hazard-

ous waste from so-called “small quantity generators” did

not disqualify the Facility from the Section 3001 (i) exelu-

sion because small quantity generators are plainly permit-

ted to dispose of their waste at non-hazardous waste

disposal facilities such as the Westchester Facility. 725

F. Supp. at 772-73; Pet. App. at 63-66. After limited

discovery confirmed that the Facility qualifies for the

exclusion offered by Section 3001(i) beeause it does not

accept hazardous waste, EDF stipulated to entry of

semmary judgment against it.

The judgment of the district court was affirmed by a

unanimous panel of the Court of Appeals for the Second

Circuit on April 24, 1991, for the reasons stated in “Judge

Haight’s thorough and well reasoned opinion.” 931 F.2d

at 213; Pet. App. at 12.2 On November 29, 1989, the

District Court for the Northern District of Illinois issued

its decision in Environmental Defense Fund, Inc. v. City of

Chicago, 727 F. Supp. 419 (N.D. Ill. 1989), in which it

also concluded that Section 3001(i) applies to ash from a

resource recovery facility.

‘Citations to the District Court's opinion are to both the reported

opinion and the petitioner's appendix. See Environmental Defense

Fund, Inc. v. Wheelabrator Technologies Inc., 725 F. Supp. 758

(S.D.N.Y. 1989); Pet. App. 14-78.

* Citations to the Court of Appeals opinion are to both the reported

opinion and the petitioner's appendix. See Environmental Defense

Fund, Inc. v. Wheelabrator Technologies Inc., 931 F.2d 211 (2d Cir.

1991); Pet. App. 1-13.

i)

REASONS FOR DENYING THE WRIT

I.

EDF's Petition Fails to Raise Any Issue Warranting

Supreme Court Review.

After the District Court entered judgment, Congress

adopted the Clean Air Act Amendments of 1990, which

provide, in part, as follows:

For a period of 2 years after the date of enactment of

the Clean Air Act Amendments of 1990, ash from

solid waste incineration units burning municipal

waste shall not be regulated by the Administrator of the

Environmental Protection Agency pursuant to sec-

tion 3001 of the Solid Waste Disposal Act.

Section 306, Pub. L. No. 101-549, 104 Stat. 2399, 2584

(1990) (codified at 42 U.S.C. §6921 note) (emphasis

added). This two-year moratorium on the regulation of

ash as a hazardous waste was adopted to provide Con-

gress with an opportunity to review the regulation of ash

in the context of its expected reauthorization of RCRA.

See 136 Cong. Ree. S16924 (daily ed. October 27, 1990)

(statement of Sen. Durenberger).

The House and Senate Conferees explained in a Joint

Explanatory Statement of the Committee of Conference

that the provision was not intended “to prejudice or affect

in any manner ongoing litigation, including Environmen-

tal Defense Fund v. Wheelabrator Inc. .. . and Environmen-

tal Defense Fund v. City of Chicago.” H. Rep. No. 101-952,

101st Cong., 2d Sess. 392 (Oct. 26, 1990) (citations

omitted). When the conferees made this statement, the

district court below and the district court in Chicago had

upheld the applicability of the exclusion to resource

recovery facility ash. In any event, it is quite clear that

the moratorium eliminates any prospective impact of

6

EDF's claim that the ash from a resource recovery facil-

ity is not covered by the Section 3001(i) exclusion. All

regulation of such ash residue is now prohibited for this

two-year period, leaving the current practices of the

Facility and the facility in Chieago unaffected by any

decision in this case.

Indeed, it would be a waste of judicial resources for

this Court to review the meaning of Section 3001(i) when

Congress itself reexamined that provision last year, and

did not see fit to amend it or to overturn the two district

court cases interpreting it. Hence, the petition fails to

raise “an important question of federal law which has not

been, but should be, settled by [the Supreme] Court.”

Sup. Ct. R. 10.1(e).

Il.

The Second Circuit Properly Interpreted Section

3001 (i) of RCRA.

The fundamental flaw in EDF's analysis, one that has

been recognized by every court that has considered the

issue, is that Congress did not enact Section 3001(i) to

narrow the scope of the household waste exclusion, but to

clarify that the exclusion extended to resource recovery

facilities that accept non-hazardous commercial and in-

dustrial waste in addition to household waste.

A. The appellate court properly concluded that the

Facility’s residue ash was exempt from regulation

under Section 3001 (i).

It is undisputed that the ash produced from the inciner-

ation of household waste alone is exempt from regulation

as hazardous waste. In 1980, EPA promulgated thr s4o-

called “household waste exclusion.”” See 45 Fed. Reg.

7

33,120 (May 19, 1980) (codified as amended at 40 C.F.R.

§ 261.4(b)(1)). That regulation defines ‘household

waste” to include “household waste that has been col-

lected, transported, stored, treated, disposed, recovered

(e.g., refuse-derived fuel) or reused’’ and excludes such

waste from hazardous waste regulation. /d. In its pream-

ble to this regulation, EPA states unequivocally that the

entire household waste stream, including the “residues

remaining after treatment (¢.g., incineration, thermal

treatment) are not subject to regulation as hazardous

waste.” Id. at 33,099.

Although EPA’s household waste exclusion encom-

passes facilities that accept only household waste, uncer-

tainty arose as to the status of the typical resource

recovery facility: one that accepts municipal solid waste

consisting of both household waste and non-hazardous

commercial and industrial waste. Accordingly, Congress

enacted Section 3001(i) of RCRA. Pub. L. No. 98-616,

§ 223(a), 98 Stat. 3221, 3252 (Nov. 8, 1984) (codified at

42 U.S.C. § 6921(i)). The text of that section is set forth

in EDF’s petition. Pet. at 2-3. The provision, entitled

“Clarification of household waste exclusion,” provides

that a resource recovery facility ‘shall not be deemed to

be treating, storing, disposing of, or otherwise managing

hazardous wastes” if it receives and burns only household

waste and non-hazardous solid waste from commercial or

industrial sources, and establishes “contractual require-

ments or other appropriate notification or inspection pro-

cedures to assure that hazardous wastes are not

received.” 42 U.S.C. § 6921(i).

EDF contends that while the management and disposal

of household waste and non-hazardous commercial and

industrial waste by a resource recovery facility is exempt

from regulation, the management and disposal of the

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8

resulting ash residue is not. Its entire argument hinges on

the absence of the word “generating” from the list of

activities referred to in Section 3001(i). The District

Court rejected such a narrow reading of the language of

the statute, however, finding that the term “otherwise

managing hazardous wastes”’ is sufficiently broad to be

considered the type of general catchall provision often

found in statutes and that it certainly warranted a review

of the legislative history of the section. See 725 F. Supp.

at 764 & n.13; Pet. App. at 32-34 & n.13.

The District Court then found that the legislative

history of the provision leaves no doubt that Congress

intended Section 3001(i) to extend to ash. As Judge

Haight noted, the Senate Report that accompanied that

provision “could not be more explicit.” The Senate Report

states that “/a/ll waste management activities of [a re-

source recovery] facility, including the generation, trans-

portation, treatment, storage and disposal of waste shall

be covered by the exclusion.” 725 F. Supp. at 764-65; Pet.

App. at 34-36 (quoting S. Rep. No. 284, 98th Cong. Ist

Sess. 61 (1983)) (emphasis added by District Court). It

thus “includes the term ‘generation’, that term upon

which EDF places so much emphasis.” 725 F. Supp. at

765; Pet. App. at 36. The Court also noted that the

Conference Committee Report echoes this clear expres-

sion of Congressional intent:

The Senate Amendment clarifies that an energy re-

covery facility is exempt from hazardous waste re-

quirements if it burns only residential and non-

hazardous commercial wastes....

725 F. Supp. at 765; Pet. App. at 35-36 (quoting H.R.

Conf. Rep. No. 1133, 98th Cong., 2d Sess. 79, 106 (1984),

reprinted in 1984 U.S. Code Cong. & Admin. News 5576,

5649, 5677).

9

Nowhere in Section 3001(i) itself or in its legislative

history is there “any hint of a congressional intent to

limit the scope of that earlier [household waste] exclu-

sion.” 725 F. Supp. at 765; Pet. App. at 37. The opposite is

true. The Senate Report emphasized that

[i]t is important to encourage commercially viable

resource recovery facilities and to remove the impedi-

ments that may hinder their development and opera-

tion. New Section 3001(d) [sic] clarifies the original

intent to include within the household waste exclusion

activities of a resource recovery facility which recovers

energy from the mass burning of household waste and

non-hazardous waste from other sources.

S. Rep. No. 284, 98th Cong., Ist Sess. 61 (1983) (empha-

sis added). The legislative history of Section 3001 (i) is so

clear and so directly contrary to EDF’s strained interpre-

tation that EDF is forced to characterize it as “loose

draftsmanship.” Pet. at 11 n.8.

In short, Congress intended to encourage resource

recovery facilities by clarifying that the household waste

exclusion (which unambiguously included ash) applied to

resource recovery facilities that receive both household

waste and non-hazardous waste from commercial and

industrial sources. There is no indication whatsoever that

in “clarifying” the exclusion Congress intended to carve

the management of ash out of the exclusion. Such a

carveout would be distinctly contrary to the express

Congressional intent to encourage the development of

such facilities.

EDF relies heavily in its petition on the EPA’s initial

contrary interpretation of Section 3001 (i). See Pet. at 11-

14. Because that interpretation directly conflicts with the

expressed legislative intent, the District Court rejected it.

10

725 F. Supp. at 766; Pet. App. at 40-41. Moreover, as the

District Court detailed, the EPA has since “recognized

the questionable basis for its determination that ash is

subject to regulation as a hazardous waste.” 725 F. Supp.

at 767; Pet. App. at 42. “In these circumstances, an

additional reason for rejecting the agency interpretation

u.ged upon this Court by EDF is the ‘inconsistency of the

positions the [EPA] has taken through the years.’ ”’ 725

F. Supp. at 768-69; Pet. App. at 49-50 (footnote and

citation omitted).

Finally, the appellate and district courts interpret See-

tion 3001(i) in the only manner that gives it significant

meaning. EDF concedes that EPA's original household

waste exclusion continues to exempt from hazardous

waste regulation a resource recovery facility that accepts

only household waste. Under EDF’s construction, Sec-

tion 3001(i) singles out for more stringent regulation

resource recovery facilities that accept non-hazardous

commercial and industrial waste in addition to household

waste, despite Congress’ expressed policy of encouraging

the development of such facilities.

B. The appellate court properly concluded that a

facility does not jeopardize its Section 3001 (i)

exclusion by accepting waste from a small quan-

tity generator.

EDF contends that if a resource recovery facility ac-

cepts any waste from a small quantity waste generator, it

loses its exelusion under Section 3001(i1) and must be

treated as a hazardous waste facility. Judge Haight em-

phasized the complete irrationality of this proposition:

It would make no sense to allow small quantity

generators to dispose of their waste in a facility

licensed to deal with municipal or industrial waste

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11

and then to deem that facility a hazardous waste

disposal site subject to regulation as such.

725 F. Supp. at 772; Pet. App. at 65.

Moreover, in its original household waste exclusion,

EPA expressly noted that waste from a small quantity

generator could be mixed with the household waste

stream without jeopardizing the household waste exclu-

sion. 45 Fed. Reg. 33,099 (May 19, 1980). Nothing in the

history of Section 3001(i) indicates any intention to

change this principle.

12

CONCLUSION

EDF’s Petition for a Writ of Certiorari fails to raise

any issues worthy of this Court’s review. With its enact-

ment of the Clean Air Act Amendments of 1990 and a

two-year moratorium on the regulation of residue ash,

Congress has rendered academic the issues raised in this

case. In any event, the unanimous decisions of the Court

of Appeals and the District Court were correct.

Respectfully submitted,

JOHN G. KOELTL

(Counsel of Record)

DANIEL G. MURPHY

ANDREA OSER

DEBEVOISE & PLIMPTON

875 Third Avenue

New York, New York 10022

Of Counsel:

HAROLD HIMMELMAN

DaviID M. FRIEDLAND

BEVERIDGE & DIAMOND

1350 I Street, N.W.

Washington, D.C. 20005

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