Petition for Writ of Certiorari — Chicago v. Environmental Defense Fund

Supreme Court brief1994

Ask Donna

What actually matters in this document.

Text

92-1639 |

APR 12 1993

bal CEA

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

THE City OF CHICAGO, et al.,

. Petitioners,

ENVIRONMENTAL DEFENSE FUND, et al.,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

SUSAN S. SHER

Acting Corporation Counsel

of the City of Chicago

LAWRENCE ROSENTHAL

Deputy Corporation Counsel

BENNA RUTH SOLOMON

Chief Assistant Corporation

Counsel

MARDELL NEREIM *

Assistant Corporation Counsel

30 North LaSalle Street

Room 800

Chicago, Lllinois 60602

(312) 744-6975

Attorneys for Petitioners

* Counsel of Record

a EE ED CE CERI

WILSON - EPES PRINTING Co..

Inc

- 789-O004N6 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Whether Section 3001(i) of the Resource Conservation

and Recovery Act, 42 U.S.C. § 6921(i), which provides

that a “resource recovery facility recovering energy from

the mass burning of municipal solid waste shall not be

deemed to be treating, storing, disposing of, or otherwise

managing hazardous wastes,” exempts from hazardous

waste regulation the ash generated by burning municipal

solid waste at such a facility.

(i)

PARTIES TO THE PROCEEDING

The petitioners are the City of Chicago and Richard

M. Daley, in his official capacity as Mayor of the City of

Chicago. The respondents are the Environmental Defense

Fund, Inc., and Citizens for a Better Environment.

TABLE OF CONTENTS

QUESTION PRESENTED .0.00o0000.o0..ccceecee

PARTIES TO THE PROCEEDING |... |

TABLE OF AUTHORITIES ..................... an

OPINIONS BELOW .....000..... sepeecnnese pishinineeiniammeness

JURISDICTION ........ ebeadinmassnceens iepeianelablanstinssonandasiasebonee

STATUTE INVOLVED ......... | Te Ree

EEE aemenies

REASONS FOR GRANTING THE PETITION .. __.

a cicecicsncnsndacacsecsacecsesesscosseces

(iii)

TABLE OF AUTHORITIES

Cases: Page

Chevron, U.S.A., Inc. v. Natural Resources De-

fense Council, 467 U.S. 837 (1984) ........ Rese 15

Environmental Defense Fund v. Wheelabrator

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

1989), aff’d, 931 F.2d 211 (2d Cir.), cert. denied,

I I, 08 de passim

Statutes and Regulations:

Resource Recovery and Conservation Act, 42

U.S.C. §§ 6901-6992 (k)

Td cessor aie caeeteliaietathilinadtladiadabitdatabin 16

EAS enon none ts 16

OD GD cxnerecesscscecsseemnsssnsssnnmensntsuneceseneineeiain 8

STITT ia sssccnsenciimmenisensnaniadeidiniadaamiaes eienmaaieanss 16

| | schanintnintinasenenimnth seteiataubiaindiiotiel 16

EES iisiesduaniinsetiandiaaidipiibmeeiint 16

§ 6902 (10).................. jeciaimasaliaaniaaee eisteisiihaiaeniiaiaes 16

EES iaaloaeabetaaiandaaimaaaise = 16

STITT oiiercnpnnnnesenessennsuetnpnmmannnentseisiiisasinidaigiiiiiliia 4

EAC ESSER sapere ieadaniaeaaddiinalaide 14

§ 6903 (24).................. siiaeiliniiaieeaaiaipaainiamtaeniiasi 3

| __SERRESSSSERESRLERE SREr enooe Moana ‘ 14

TESS TREE E eR eran ous ra 4

§ 6921(i) . PAS tai Seo AE per eo ....... passim

A RE ES eed vomnt unas ssiiaalie 5

EES cicicliiad ies eadeaeieaacabcieidicameeetaa 4

§ 6928 (ir) aden tal A Da eee a 12

§§ 6941-6949... siscanebaiiateiimealin aebeaaell 5

§ 6941a(2)............ peaccrninon! rane.

§ 6941a(3)........ OS Ea nee Re ee Pn ne, Sidr ah ore 3, 16

TRE ener eee T RO 16

§ 6972 (a)... +e oie . 12,19

Pub. L. No. 101-549, '§ 306, 104 Stat. 2399 (1990). 18

40 C.F.R. (1991)

§ 241.101 (k)................ sasamnanmsentapeaiansiaiantnninteins =

II iss sch cae seca ch seis deine iaeaaanEa

§ 262.12............. PME SEN a

§§ 262.30-33

@ 3u.26.................... saaoaaliaet jaapnsctaeindaisanaits

§§ 264.1-264. 1065. ininnihstiibhintaguitnmastncsnmantontsi eiaiinhatiniat

a. & Clo

TABLE OF AUTHORITIES—Continued

Page

45 Fed. Reg. 33098 (1980) ................00 00. 5

ID Pas EC 3,5

Bk) ) een 3

Congressional Materials:

S. Rep. No. 988, 94th Cong., 2d Sess. (1976) 5

S. Rep. No. 284, 98th Cong., 2d Sess. (1983) 6, 14,17

H. Rep. No. 952, 101st Cong., 2d Sess. (1990),

reprinted in 1990 U.S. Code Cong. & Admin.

REESE EIEAE GS J CESS EP RBS EY aS LE SY SAT OS 18

Periodicals and Reports:

Kiser, Municipal Waste Combustion in the United

States: An Overview, Waste Age, Nov. 1991. 3-4

Solid Waste and Power, Energy-from-Waste 1993

rE SE AE mE E 4

IN THE

Supreme Court of the United States

OcTOBER TERM, 1992

No.

Tue Crry oF CHICAGO, et al.,

7 Petitioners,

ENVIRONMENTAL DEFENSE FUND, et al.,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioners, the City of Chicago and Mayor Richard

M. Daley, respectfully petition for a writ of certiorari to

review the judgment of the United States Court of Ap-

peals for the Seventh Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals on remand from

this Court, App., infra, la-4a, is reported at 985 F.2d

303 (7th Cir. 1993). The original opinion of the court

of appeals, App., infra, Sa-2la, is reported at 948 F.2d

345 (7th Cir. 1991), vacated and remanded, 113 S. Ct.

486 (1992). The district court's memorandum opinion

and order of November 29, 1989, App., infra, at 22a-33a,

is reported at 727 F. Supp. 419 (N.D. Ill. 1989).

JURISDICTION

The judgment of the court of appeals upon remand

from this Court was originally entered by an unpublished

order issued on January 12, 1993. The court of appeals

issued a published decision on January 29, 1993. The

jurisdiction of this court is invoked under 28 U.S.C.

§ 1254(1).

STATUTE INVOLVED

42 U.S.C. § 6921(i)

(1) Clarification of household waste exclusion

A resource recovery facility recovering energy from

the mass burning of municipal solid waste shall not

be deemed to be treating, storing, disposing of, or

otherwise managing hazardous wastes for the pur-

poses of regulation under this subchapter, if—

(1) such facility—

(A) receives and burns only—

(i) household waste (from single and mul-

tiple dwellings, hotels, motels, and other resi-

dential sources), and

(ii) solid waste from commercial or indus-

trial sources that does not contain hazardous

waste identified or listed under this section, and

(B) does not accept hazardous wastes identi-

fied or listed under this section, and

(2) the owner or operator of such facility has es-

tablished contractual requirements or other ap-

propriate notification or inspection procedures

to assure that hazardous wastes are not received

at or burned in such facility.

STATEMENT

1. Backeround. As this case comes to the Court for

the second time, the country remains in the midst of a

waste disposal crisis. We generated approximately 180

million tons of municipal solid waste—the “residential

and commercial solid wastes generated within a com-

munity” (40 C.F.R. § 241.101(k))—in 1988; that num-

ber is projected to grow to 216 million tons by the year

2000. See 56 Fed. Reg. 50978, 50980 (1991) (sum-

marizing the findings of Environmental Protection Agency

study). Much of that waste is now deposited in land-

fills, but we are running out of landfill capacity.

More than fifteen years ago, Congress warned that

“alternatives to existing methods of land disposal must

be developed since many of the cities of the United

States” are running out of waste disposal sites. 42 U.S.C.

§ 6901(b)(8). More recently, Congress has determined

that “the recovery of energy and materials from municipal

waste, and the conservation of energy and materials con-

tributing to such waste streams, can have the effect of

reducing the volume of the municipal waste stream and

the burden of disposing of increasing volumes of solid

waste” Jd. § 6941a(3). See also id. § 6941a(2) (“solid

waste contains valuable energy and material resources

which can be recovered and used thereby conserving

increasingly scarce and expensive fossil fuels and virgin

materials”).

Facilities that extract reusable materials from municipal

solid waste or convert solid waste into energy are classi-

fied as “resource recovery” facilities under the Resource

Conservation and Recovery Act (“RCRA”), 42 U.S.C.

$ 6903(24). As of November 1991, there were 137

resource recovery facilities in operation in the United

States, eleven facilities under construction, and an esti-

mated additional 57 facilities in the planning phase. See

Kiser, Municipal Waste Combustion in the United States:

An Overview, Waste Age (Nov. 1991), at 27, 109."

These facilities generate power that is equivalent to the

amount of energy needed to supply electricity to 1.2 mil-

lion homes, or the amount produced by 30 million barrels

of oil. 7d. at 27.

The general federal statutes and regulations governing

Waste disposal are an important part of the regulatory

matrix applicable to the operation of resource recovery

facilities. When Congress enacted RCRA, it directed that

“hazardous waste” be managed pursuant to a separate

regulatory scheme—set forth in Subtitle C of the statute

that establishes standards for the treatment, storage,

and disposal of such waste. See 42 U.S.C. $$ 6921-6939."

Generators of hazardous waste must obtain an identifica-

tion number from the United States Environmental Pro-

tecuon Agency (EPA) before engaging in the treatment,

Storage. transportation. or disposal of hazardous wastes.

See 40 C.F.R. $ 262.12 (1991). Hazardous waste must

be packaged. labelled, and marked according to specific

regulations before it may be shipped. See id. § 262.30-33.

It may be held only in approved containers and only for

specified periods of time. See id. §$ 262.34. Facilities

that treat, store, or dispose of hazardous waste must ob-

tain permits (see 42 U.S.C. $ 6925), and must comply

with many regulations setting performance standards for

‘A more recent survey found that in 1993 there were 128 oper-

ating resource recovery facilities, four facilities under construc-

tion, and an estimated 42 facilities in planning. Solid Waste &

Power, Energy-from-Waste 1993 Activity Report i (1998).

“The statute defines “hazardous waste” as “a solid waste. or

combination of solid wastes, which because of its quantity, concen-

tration, or physical, chemical, or infection characteristics mav-

(A) cause, or significantly contribute to an increase in mor-

tality or an increase in serious irreversible, or incapacitating

reversible illness; or

(B) pose a substantial present or potential hazard to human

health when improperly treated, stored. transported, or dis-

posed of, or otherwise managed.”

42 U.S.C. § 6903(5).

such facilities. See id. § 6924; 40 C.F.R. § 264.1-

264.1065.

Disposal of non-hazardous waste is regulated under

Subtitle D of RCRA, which provides significantly less

stringent regulation than Subtitle C. See 42 U.S.C.

$$ 6941-6949. The EPA has promulgated regulations

setting minimum national standards for these landfills.

See 56 Fed. Reg. 50978 (1991).

Waste from homes and offices frequently contains some

components that qualify as hazardous waste under the

federal scheme, but Congress made clear in the legislative

history of RCRA that it did not intend to regulate such

“general municipal wastes” as hazardous waste. S. Rep.

No. 988, 94th Cong., 2d Sess. 16 (1976). The EPA

subsequently promulgated a regulation—the “household

waste exclusion”—providing that “any material * * *

derived from households (including single and multiple

residences, hotels and motels * * *)” is not a hazardous

waste within the meaning of the statute. 40 C.F.R.

§ 261.4(b)(1). This exclusion permits the disposal of

all household waste in a Subtitle D landfill, even if the

waste would qualify as hazardous waste under the gen-

erally applicable statutory standard. At the time the EPA

issued this regulation, it stated that the exclusion extended

to ash remaining after household waste was burned in

an incinerator. “Since household waste is excluded in all

phases of its management, residues remaining after treat-

ment (e.g., incineration, thermal treatment) are not sub-

ject to regulation as hazardous waste.” 45 Fed. Reg.

33098 (1980).

In 1984, Congress added a new provision to RCRA—

Section 3001(i)—entitled “Clarification of household

waste exclusion.” It states in pertinent part that “[a]

resource recovery facility recovering energy from the mass

burning of municipal waste shall not be deemed to be

treating, storing, disposing of, or otherwise managing

hazardous waste for the purpose of regulation under this

subchapter” if the facility receives and burns only (a)

household waste and (b) commercial and industrial solid

waste that does not contain hazardous waste. 42 U.S.C.

S$ 6921(i).°

The Senate committee report accompanying this pro-

vision observed that resource recovery facilities often take

in household waste mixed with non-hazardous waste from

sources other than househelds. such es schocls. churches.

and municipal buildings. The committee stated that “i]t is

important to encourage commercially viable resource re-

covery facilities and to remove impediments that may

hinder their development and operation. New section

[3001(1)] 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).

The question in this case is whether, pursuant to Sec-

tion 3001(i). the ash residue remaining after solid waste

is burned in a resource recovery facility may be disposed

of in a Subtitle D disposal facility, regardless of whether

the ash might qualify as a hazardous waste under the

generally applicable standard.

2. The Chicago Resource Recovery Facility. The

City of Chicago owns and operates a resource recovery

facility, the Northwest Waste-to-Energy Facility (‘“North-

west Facility”), where it burns municipal solid waste and

generates electricity, thereby reducing the volume of

Waste disposed of in landfills and helping to reduce de-

pendence on imported oil for the generation of electricity.

The facility processes approximately 14% of the muni-

%In addition, the facility may not accept hazardous waste, and

the owner or operator of the facility must “establish[] contractual

requirements or other appropriate notification or inspection pro-

cedures to assure that hazardous wastes are not received at or

burned in such facility.” 42 U.S.C. § 6921(i) (2).

;

cipal solid waste produced in Chicago. R. 18. It also

produces steam by recovering the energy generated from

the combustion of the waste. The facility not only uses

the steam for its own operations, but also sells it for

SI million to nearby industry and for another $500,000

to the local utility. /bid. Finally, the facility recovers

approximately 55 tons of tin cans and other ferrous

metals each day, which are sold to scrap metal dealers.

Thid.

At the time that this case was before the district court,

the City disposed of the ash remaining at a sanitary land-

fill located in Three Oaks, Michigan, that received only

municipal incinerator ash. R. 18. This is a lined land-

fill with a leachate collection system and groundwater

monitoring systems to monitor its performance. Ibid.

The City does not test the ash produced at the Northwest

Facility to determine whether it would be classified as

hazardous under EPA regulations, and has not managed

the ash as a hazardous waste.

3. The Proceedings Below. The Environmental De-

fense Fund and Citizens for a Better Environment (here-

inafter collectively referred to as EDF) filed the com-

plaint in this case. alleging that the City violated several

provisions of RCRA, 42 U.S.C. §§ 6901-6992(k), by

not handling the ash produced at the Northwest Facility

as a hazardous waste pursuant to Subtitle C of RCRA.

R. 1. The district court had jurisdiction over this federal

question pursuant to 28 U.S.C. § 1331. EDF simulta-

neously filed a similar action in the Southern District of

New York against Wheelabrator Technologies, Inc. and

Westchester Resco Co., which own and operate a resource

recovery facility in Peekskill, New York. See Fnviron-

mental Defense Fund v. Wheelabrator Technologies, 725

F. Supp. 758 (S.D.N.Y. 1989), aff'd. 931 F.2d 211

(2d Cir.), cert. denied, 112 S. Ct. 453 (1991).

In this case. the parties filed cross motions for sum-

mary judgment. R. 18, 30. The City’s position was that

Section 3001(i) exempted the process of incincerating

waste and producing ash at a resource recovery facility

from regulation as hazardous waste. In addition to fil-

ing its own motion for summary judgment, EDF opposed

the City’s motion on the ground that the City had not

yet demonstrated that the City’s facility met the require-

ments of Section 3001 (i).

The district court issued a memorandum opinion and

order holding that Section 3001(i) of RCRA exempted

the ash produced at resource recovery facilities from reg-

ulation as a hazardous waste. App.. infra, at 22a. The

court held that when Congress amended RCRA to exempt

resource recevery facilities from hazardous waste regula-

tions, it intended to exclude all waste management activi-

ties at these facilities from regulation. Jd. at 28a. The

district court found that this conclusion was consistent

with RCRA’s policy goal of encouraging resource recov-

ery facilities and removing impediments that may hinder

their development and operation. Jbid. The district

court, however, denied both motions for summary judg-

ment, and allowed EDF additional discovery to deter-

mine whether the Chicago facility followed the proce-

dures required under Section 3001(i) for excluding the

intake of hazardous wastes. /d. at 33a. EDF later stipu-

lated that it would not contest the adequacy of the Norih-

west Facility’s procedures for excluding hazardous wastes

and would not oppose a renewed motion for summary

judgment by the City. R. 91. The district court subse-

quently granted the City’s renewed motion for summary

judgment. App., infra, at 34a.

A divided court of appeals reversed in an opinion is-

sued on November 19, 1991. The majority held that the

ash generated by a municipal solid waste incinerator must

be disposed of in accordance with the provisions of Sub-

title C of RCRA. App., infra, at 18a, 20a. The ma-

jority focused on the Section 3001(i) exception from

hazardous waste regulations when a resource recovery

facility is “treating, storing, disposing of, or otherwise

managing” waste, noting that that section does not ex-

plicitly exempt the ash “generated” by such facilities.

App.. infra, at 18a-19a. The majority acknowledged that

the only other appellate court to address this issue, the

Second Circuit in the Wheelabrator case. had reached

the opposite conclusion. Jd. at 8a. In that case. the

Second Circuit concluded that Section 3001(i) of RCRA

exempted the ash remaining after incineration of mu-

nicipal solid waste at a resource recovery facility from

regulation as a hazardous waste. See Environmental De-

fense Fund vy. Wheelabrator Technologies, 931 F.2d at

213.

Judge Ripple dissented, stating that he would affirm

for the reasons stated in the Second Circuit and South-

ern District of New York opinions. App. infra, at 21a.

The City filed a petition for a writ of certiorari on

February 18, 1992. EDF acknowledged the square con-

flict with the decision in Wheelabrator and agreed that

the case presented an important question of federal law.

Brief for Respondent, No. 91-1328. a: 8 (on petition).

EDF urged the court to grant certiorari. Id. at 8, 12. 17.

By order of May 18, 1992, the Court invited the views

of the Solicitor General.

On September 18, 1992, the Administrator of the EPA

issued a memorandum setting forth EPA’s decision that

under Section 3001(i) of RCRA, the ash generated from

the combustion of municipal solid waste at resource re-

covery facilities should be treated as exempt from hazard-

ous waste regulation under Subtitle C of RCRA. App.,

infra, at 41a. Shortly thereafter, the Solicitor General re-

sponded to the court’s invitation by suggesting that the

petition be granted, the decision vacated, and the case

remanded to the Seventh Circuit for further consideration

in light of the EPA memorandum. Brief for the United

States as Amicus Curiae, No. 91-1328, at 7, 13, 18 (on

petition). On November 16, 1992, this Court entered

the suggested order. City of Chicago v. Environmental

Defense Fund, 113 S. Ct. 486 (1992) (granting, vacat-

ing, and remanding).

On remand, the same divided court of appeals panel

reaflirmed its previous decision. The majority held that

the EPA memorandum did not affect its opinion or judg-

ment in this case. App., infra, at 2a. Judge Ripple again

dissented, stating that the EPA’s action deserved def-

erential review and that, accordingly, he would affirm the

judgment of the district court. App., infra, at 3a-4a.

REASONS FOR GRANTING THE PETITION

The Seventh Circuit’s second decision in this case still

squarely conflicts with the decision of the Second Circuit

on an important issue of federal environmental law af-

fecting resource recovery facilities throughout the country

that burn municipal solid waste to produce energy. Al-

though this Court afforded the Seventh Circuit the op-

portunity itself to resolve the conflict, that court has de-

clined the invitation to do so. As a result. the conflict

that we noted in our prior petition—and that the court

below. EDF. and the Solicitor General acknowledged—

remains. Resource recovery facilities located in the Sec-

ond Circuit may manage the ash left after they burn mu-

nicipal solid waste as a non-harzardous waste pursuant

to Subtitle D of RCRA, but, as a result of the decision

below, all resource recovery facilities in the Seventh Cir-

cuit must manage the ash as a hazardous waste pursuant

to Subtitle C. These conflicting decisions destroy the uni-

formity necessary to the effectiveness of environmental

policy.

The conflict between the circuits also produces sub-

stantial hardship and unfairness. Subtitle C disposal is

considerably more onerous, and therefore, much more

expensive. than disposal under Subtitle D.t That addi-

*In the September 1992 memorandum, EPA noted that the cost

of Subtitle C disposal is ten times the cost of Subtitle D disposal.

The memorandum states that “[a]lthough costs vary significantly

from region to region, when averaged on a national basis there is

over a ten-fold difference between the cost of disposal of MWC

[municipal waste combustion] ash in a Subtitle C facility com-

pared to a Subtitle D landfill: the cost of transporting and dis-

tional cost has been imposed on resource recovery facili-

ties within the Seventh Circuit, but not on facilities in the

Second Circuit.

Moreover, resource recovery facilities in other circuits

continue to face great uncertainty in determining how to

manage their ash. Their choice is to treat the ash as a

hazardous waste or ship it to a circuit where it has not

been held to be a hazardous waste, either way incurring

large and perhaps wholly unnecessary expenses that would

substantially alter the economics of running such a fa-

cility. Or they may treat the ash as a non-hazardous waste

and risk the heavy penalties that may be imposed in the

event that other courts subsequently hold that the ash is

a hazardous waste that should have been managed in

accordance with Subtitle C. Transporters of ash and op-

erators of waste disposal facilities that receive ash face

similar uncertainty: they are all subject to huge mone-

tary penalties if they fail to comply with Subtitle C re-

quirements and those provisions are later held applicable

to ash. Indeed, this state of affairs creates the anomalous

possibility that municipal waste in one circuit might now

be transported to another circuit for incineration. The

petition for a writ of certiorari should be granted to re-

solve this conflict, eliminate the by now long-standing

uncertainty, and alleviate the unwarranted burden on re-

source recovery t.cilities in the Seventh Circuit.

1. The Second and Seventh Circuits’ interpretations

of Section 3001(i) of RCRA remain diametrically op-

posed. Section 3001(i) provides, in pertinent part, that:

posing of MWC ash in a Subtitle C facility is approximately

$453.00 per ton; the cost of doing so in a Subtitle D landfill is

approximately $42.00 per ton. For states that combust substantial

portions of their solid waste (in resource recovery and other com-

bustion facilities), such as Connecticut (65%), Massachusetts

(47%), and Maine (45%), this cost differential could be enormous.”

App., infra, at 48a-49a. Based on these average figures, the in-

creased costs for the City’s Northwest Facility, which must dispose

of between 110,000 and 140,000 tons of ash annually (App., infra,

at 6a), could amount to more than $57 million each year.

A resource recovery facility recovering energy from

the mass burning of municipal solid waste shall not be

deemed to be treating, storing, disposing of, or other-

Wise managing hazardous wastes for the purpose of

regulation under [Subtitle ©! * * *,

42 U.S.C. § 6921(i). The Seventh Circuit's majority held

that because this section did not specifically provide an

exemption for generating hazardous waste, the ash pro-

duced by resource recovery facilities burning municipal

solid waste must be managed as hazardous waste. not-

withstanding the specific exemptions for “treating, storing,

disposing of, or otherwise managing hazardous wastes.”

The Second Circuit, by contrast, interpreting Section

3001(i) in the Wheelabrator case, held that this section

did exempt from hazardous waste regulation the ash

generated by the burning of municipal solid waste. not-

withstanding the absence of a specific exemption in the

statute for generating hazardous waste. Environmental

Defense Fund v. Wheelabrator Technologies, 725 F.

Supp. 758, 765, 770 (S.D.N.Y. 1989), aff'd. 931 F.2d

211 (2d Cir.), cert. denied, 112 S. Ct. 453 (1991).°

As a result of the conflict in the circuits, resource

recovery facilities are uncertain how to plan and carry out

their operations. Local governments that operate or con-

tract with resource recovery facilities as well as disposal

Site Operators, are subject to substantial penalties under

RCRA—up to $25,000 per day—for mishandling haz-

ardous waste. See 42 U.S.C. $ 6928(g). And, as this

case demonstrates. actions Seeking penalties may be

brought by private parties (42 U.S.C. $ 6972(a)), not

just by the EPA. Accordingly, all resource recovery facili-

ties outside of the Second and Seventh Circuits and the

numerous waste disposal facilities in those 44 states must

now choose among incurring the very significant costs of

treating the ash as a hazardous waste (see note 4, supra),

® When this Court denied the petition in the Wheelabrator case,

there was no conflict between the circuits because the Seventh

Circuit had not yet issued its opinion in the present case.

facing harsh RCRA penalties if they guess wrongly about

how the ash should be treated in their circuit, or shipping

waste to the Second Circuit for incineration. Such a situa-

tion is intolerable. Efficient operations under a Statute as

complex and specific as RCRA are severely compromised

by this uncertainty. _

The practical problems this lack of uniformity can

cause are well illustrated in this case. The City’s North-

west Facility is located in the City of Chicago, in the

Seventh Circuit. The ash produced at that facility was

disposed of at a landfill located in Michigan, in the Sixth

Circuit. Although the ash is regulated as a hazardous

waste within the Seventh Circuit, the Sixth Circuit Court

of Appeals has not addressed the issue. But the landfill

that used to accept the ash from the Northwest Facility

is as effectively regulated as if there were law in that

circuit. The City of Chicago cannot, under the Seventh

Circuit's ruling, do business with the landfill in Michigan,

unless it moves its incinerator to the Sixth Circuit, or con-

tracts with an incinerator operator there. The situation

facing local governments in the First and Third Circuits

is even more precarious. Under the Wheelabrator case,

a resource recovery facility in the Second Circuit can

continue to dispose of ash under Subtitle D of RCRA.

But a disposal site in an adjacent circuit, where the court

of appeals has not spoken, might well refuse to accept

municipal ash because of the fear of RCRA penalties,

should the First and Third Circuits ultimately side with

the Seventh in requiring such ash to be managed as haz-

ardous waste under Subtitle C. Yet, waste from the First

and Third Circuits could still be shipped to the Second

for incineration, although it is far from clear which cir-

cuit’s law would apply in an action seeking to impose

fines on a local government sending its waste to another

circuit.

Federal regulation of the ash, whether under Subtitle D

or Subtitle C of RCRA, should be uniform throughout the

country. This Court should resolve this conflict so that

federal regulation of the ash does not depend upon the

location of the resource recovery facility and so that re-

source recovery facilities and disposal sites can plan

and carry out their operations with certainty.

2. The decision of the Seventh Circuit majority is also

wrong. It is at odds with the plain language of the

Statute, its purpose, and intent. The language of Section

3001(i) is broad. It exempts the activities of a resource

recovery facility from all hazardous waste regulation—

those governing “treating, storing, disposing of or otherwise

managing” waste. The statutory definition of hazardous

waste “management” includes all “storage, transportation,

processing, treatment, recovery and disposal of hazardous

wastes.” 42 U.S.C. § 6903(7). “Treatment” is defined,

in part, as “any method, technique, or process * * * de-

signed * * * so as to render such waste * * * reduced

in volume.” 42 U.S.C. § 6903(34). These terms plainly

encompass producing and then handling and disposing of

ash. Thus, by holding that Subtitle C regulations apply

to the production and handling of ash, the Seventh Cir-

cuit has violated the plain terms of Section 3001(i),

which indicates that facilities like the Northwest Facility

need not comply with the requirements of Subtitle C

because they do not treat or “manag{e] hazardous wastes.”

The legislative history of Section 3001(i) also indicates

its broad scope. It clarifies that the ash produced at a

resource recovery facility is exempt from regulation. The

Report of the Senate Committee on Environment and

Public Works, which accompanied the proposed legisla-

tion and commented on Section 3001(i), clearly stated

that “[a]ll waste management activities of such a facility,

including the generation, transportation, treatment, stor-

age and disposal of waste shall be covered by the exclu-

sion * * *.” §. Rep. No. 284, 98th Cong., 2d Sess. 61

(1983). In addition, Section 3001(i) is a clarification of

the EPA’s Household Waste Exclusion, “a previously

existing regulatory exclusion which clearly extended to

ash.” Wheelabrator, 725 F. Supp. at 765,

Because the EPA’s Household Waste Exclusion extends

to the ash produced when household waste is burned, the

result of the Seventh Circuit’s construction of the statute

is that ash produced by incinerators burning only house-

hold waste is exempt from Subtitle C regulation, but ash

produced by resource recovery facilities is not. See

W heelabrator, 725 F. Supp. at 765. Thus, the court be-

low has transformed a statute designed to provide an

incentive for resource recovery by relieving regulatory

burdens on resource recovery facilities into one that sub-

jects those facilities to greater regulation and increased

costs. That is precisely the opposite of what Congress

sought to achieve.

Indeed, if Section 3001(i) subjects the ash remaining

from the burning of municipal waste to Subtitle C regula-

tion, Section 3001(i) provides little if any regulatory

relief for resource recovery facilities because it fails to

exempt these facilities from one of the most onerous regu-

latory burdens. See Wheelabrator, 725 F. Supp. at 763

n.12 (if ash is not exempt from regulation as a hazardous

waste “it is difficult to understand what, if any. benefit

[resource recovery facilities] deriv[e] from the exemp-

tion”). This misinterpretation of Section 3001(i) should

be corrected by this Court.

Even if Section 3001(i) were ambiguous, the Seventh

Circuit erred. On remand from this Court, the Seventh

Circuit should have deferred to the reasonable interpreta-

tion of Section 3001(i) reached by the EPA, the agency

charged with the administration of RCRA. See, ¢.g.,

Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, 467 U.S. 837, 843-44 (1984).

3. Important policy considerations favor the resolution

of the question presented in this case. Disposal of gar-

bage is one of the major problems local governments are

facing today. Congress has recognized that the United

States is confronted with a solid waste disposal crisis, due

to an ever increasing volume of solid waste and a rapidly

diminishing amount of landfill space (see 42 U.S.C.

$6901(a) and (b)), and that reliance on landfills as

the primary method for solid waste disposal needlessly

pollutes valuable land and results in the burial of millions

of tons of recoverable materials and energy sources (see

id. § 6901(b)(1), (c) and (d)). Congress has found

that the recovery of solid waste materials “can reduce the

dependence of the United States on foreign resources and

reduce the deficit in the balance of payments” (id. § 6901

(c)(3)), and that solid wastes represent a potential source

of energy that can reduce the nation’s dependence upon

sources of energy such as petroleum products, natural

gas, and nuclear or hydroelectric generation of energy

(id. § 6901(d)). When Congress amended Subtitle D of

RCRA in 1980, it found that:

(2) solid waste contains valuable energy and ma-

terial resources which can be recovered and used

thereby conserving increasingly scarce and expensive

fossil fuels and virgin materials;

(3) the recovery of energy and materials from mu-

nicipal waste, and the conservation of energy and

materials contributing to such waste streams, can

have the effect of reducing the volume of the mu-

nicipal waste stream and the burden of disposing of

increasing volumes of solid waste.

Id. § 6941(a)(2) and (3). Resource recovery facilities

further these congressional goals.

The conclusion of the majority below that Congress

would not have approved the disposal of hazardous ash

in ordinary landfills, App., infra, at 20a, ignored these

important reasons Congress had for encouraging the de-

velopment and use of resource recovery facilities. Con-

gress has made it clear that it intends to encourage re-

source recovery facilities. See 42 U.S.C. §§ 6902(1),

(10) and (11), 6948(d)(3). Indeed, the Senate Report

accompanying Section 3001(i) states that “fit is im-

portant to encourage commercially viable resource re-

covery facilities and to remove impediments that may

hinder their development and operation.” S. Rep. No.

284 at 61. The congressional choice reflected in Section

3001(i) to exclude the waste management activities of

resource recovery facilities from hazardous waste manage-

ment regulations was intended to encourage resource re-

covery as one of the solutions to this country’s mounting

solid waste disposal crisis.

The present confusion regarding the scope of the Sec-

tion 3001(i) exemption will have a significant deterrent

effect on development of additional resource recovery

facilities. The cost of disposing of ash is an important

element of the economics of operating these facilities.

See note 4, supra. Municipalities considering such a proj-

ect cannot now determine whether resource recovery will

be justified economically because they cannot make any

reliable projection of disposal costs. A municipality

would be unlikely to embark on such an expensive under-

taking when it has no way to predict the eventual costs

and, therefore, whether the anticipated revenues would

cover those costs. Thus, the uncertainty spawned by the

conflicting appellate decisions is at the present time

thwarting Congress's clear purpose of encouraging use of

this technology.

4. Finally, both the Second Circuit and the Seventh

Circuit concluded that Congress has left the question of

the meaning of Section 3001(i) for judicial resolution.

See Wheelabrator, 931 F.2d at 213; App., infra, at 9a.

This conclusion was based upon Section 306 of the Clean

Air Act Amendments of 1990, which provides that:

For a period of 2 years after the date of the enact-

ment 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

section 3001 of the Solid Waste Disposal Act. Such

reference and limitation shall not be construed to

affect any activity by the administrator following the

2-year period from the date of enactment of the

Clean Air Act Amendments of 1990,

Clean Air Amendments, Pub. L. No. 101-549, § 306,

104 Stat. 2399, 2584 (1990). The Conference Report

accompanying this section specifically stated that ‘‘[t}he

conferees do not intend to prejudice or affect in any

manner ongoing litigation, including Environmental De-

fense Fund v. Wheelabrator, Inc., 725 F. Supp. 758 (2d

Cir. [sic] and Environmental Defense Fund v. City of

Chicago, Appeal No. 90-3060 (7th Cir.), or any state

activity regarding ash.” H. Rep. No. 952, 101st Cong.,

2d Sess. 335, 342 (1990), reprinted in 1990 U.S. Code

Cong. & Admin. News 3867, 3874. Both courts of appeals

interpreted this section of the Clean Air Act Amendments

to mean that Congress intended to preclude the EPA

from promulgating any new regulations, but to allow the

EPA to enforce the regulatory scheme already in place.

See Wheelabrator, 931 F.2d at 213; App., infra, at 9a.

Both courts concluded that Congress was waiting for the

courts to resolve the issue raised in these cases.° The

two courts, however, reached opposite conclusions about

the meaning of Section 3001(i), and despite this Court’s

remand of this case to the Seventh Circuit for further

consideration in light of the EPA memorandum of Sep-

tember 1992, the courts remain in conflict. Because the

courts of appeals are in disagreement, it is up to this

Court to provide Congress with a judicial resolution of

that question.’

®* The Seventh Circuit stated that “it may well have been that

Congress wanted to see what the courts had to say before under-

taking any retooling of the current regulatory scheme.” App.,

infra, at 9a. Similarly, the Second Circuit stated that “Congress

simply may have desired to maintain the status quo pending judi-

cial resolution of the issues presented here and in City of Chicago.

Once the courts have spoken, Congress will be in a better position

to evaluate its options regarding the treatment of incinerator ash

and to direct its future legislative efforts accordingly.” Wheel-

abrator, 931 F.2d at 213.

) " There is no indication that Congress is likely to resolve the

issue raised in this case at any time in the near future. No bill

has yet been introduced in this Congress. Even if RCRA were

ee tes

Moreover, although that EPA memorandum represents

EPA’s definitive position on this issue, it failed to re-

solve the conflict in the interpretation of Section 3001 (i)

because the Seventh Circuit has rejected the EPA’s in-

terpretation. In its opinion on remand, the majority con-

cluded that “[t]he agency’s change of position and Ad-

ministrator Reilly's memorandum explaining it do not

persuade us that our analysis of RCRA was in error.”

App., infra, at 2a.

In sum, there is a conflict between the circuits on an

important issue of environmental law: the management

of ash produced at resource recovery facilities. A federal

statute that depends for its effectiveness on uniform ap-

plication throughout the country has been interpreted

to exempt the ash from hazardous waste regulation in the

Second Circuit, but to require the management of the ash

as a hazardous waste in the Seventh Circuit, with the

result that resource recovery facilities in all other circuits

are uncertain how to manage their ash. Moreover, Con-

gress has indicated that it is waiting for judicial resolu-

tion of this issue, and indeed there is no resolution likely

from any other quarter. The courts of appeals and the

EPA have been unable to resolve this issue “his Court

should, therefore, resolve the question whether Section

3001(i) of RCRA exempts the ash produced at resource

recovery facilities from hazardous waste regulation.

reauthorized, the new statute may not deal with this issue. More-

over, a new statute might be prospective only, leaving all munici-

palities with resource recovery facilities outside of the Second

Circuit with potential liability for substantial penalties in civil

penalty actions, like this one, that can be commenced by private

parties (see 42 U.S.C. § 6972(a)), if the issue how the ash is to be

regulated is not resolved by this Court. Resource recovery facili-

ties should not be left in a state of uncertainty based on specula-

tion that Congress might act to address this issue some time in the

future.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

SUSAN S. SHER

Acting Corporation Counsel

of the City of Chicago

LAWRENCE ROSENTHAL

Deputy Corporation Counsel

BENNA RUTH SOLOMON

Chief Assistant Corporation

Counsel

MARDELL NEREIM *

Assistant Corporation Counsel

30 North LaSalle Street

Room 800

Chicago, Illinois 60602

(312) 744-6975

Attorneys for Petitioners

April 12, 1993 * Counsel of Record

APPENDIX

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 90-3060

ENVIRONMENTAL DEFENSE FUND, INC.

and CITIZENS FOR A BETTER ENVIRONMENT,

Plaintifjs-A ppellants,

Vv.

City OF CHICAGO and Mayor RICHARD M. DALEY,

Defendants-A ppellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division

No. 88 C 769—-James B. Moran, Chief Judge

DECIDED JANUARY 29, 1993 '

ae ON REMAND FROM THE SUPREME CouRT

OF THE UNITED STATES

No. 91-1328

est ay Before Bauer, Chief Judge, PosNer and RIPPLE,

» is Circuit Judges.

1 This decision was originally rendered by unpublished order on

January 12, 1993. See Circuit Rule 53. The Court has subsequently

decided to issue the decision as an opinion.

. BAUER, Chief Judge. The Supreme Court granted cer-

tiorari in this case and vacated our judgment. Environ-

mental Defense Fund v. City of Chicago, 948 F.2d 345

(7th Cir. 1991), vacated, No. 91-1328. 61 U.S.L.W. 3369

(Nov. 17, 1992). The Court has remanded the case ‘for

reconsideration in light of a memorandum issued by the

Administrator of the Environmental Protection Agency

(“EPA ) to regional administrators about the “Exemption

for Municipal Waste Combustion Ash From Hazardous

Waste Regulation Under RCRA Section 3001 ( _ Mem-

orandum of William K. Reilly, Administrator, Environ-

mental Protection Agency, dated September 18, 1992. We

have requested and received Circuit Rule 54 Statements

of Position from both parties. In our earlier opinion, we

ruled that ash generated in the combustion of municipal

waste is subject to the regulatory scheme governing haz-

ardous waste set forth in Subtitle C of the Resource Con-

servation and Recovery Act of 1976, 42 U.S.C. § 6901-

pata RA"). heap order assumes familiarity with

; opinion in thi i

my Fyre 7% A case, which appears at 948

The EPA memorandum explains the agency’s new in-

terpretation of Section 3001(i) of RCRA, 42 US.C

§ 6921 (i). The agency’s new interpretation represents a

change in the agency's prior official position that ash

generated by the combustion of municipal waste is not

included in the Section 3001(i) exemption. See 50 Fed

Reg. 28,725-26 (July 15, 1985). Hence, the EPA’s

interpretation now conflicts with ours. |

The agency's change of position and Administrator

Reilly's memorandum explaining it do not persuade us

that our analysis of the RCRA was in error. As we ex-

plained in the original opinion, the EPA has changed its

view so often that it is no longer entitled to the deference

normally accorded an agency’s interpretation of the stat-

ute it administers. 948 F.2d at 350. This additional

change of position does not alter that conclusion.

Administrator Reilly explained the change of position

is justified because the language of Section 3001(i) is

ambiguous and its legislative history supports the agency's

conclusion that the ash should be exempted under Section

3001(i). These arguments were presented to this court by

the City and we considered and rejected them, finding

that the plain language of the statute is dispositive. The

EPA offers no new support for these arguments in its

memorandum, and we continue to find them unpersuasive.

Further, because we believe the language of Section 3001

(i) is clear, the public policy arguments Reilly discusses

in the memorandum cannot override the mandate of the

statute. Only Congress may change the law in response

to policy arguments, courts may not do so.

Accordingly, upon reconsideration of the parties’ state-

ments of position and the memorandum, we hold that the

EPA memorandum does not affect our opinion or judg-

ment in this case.

RipPLe, Circuit Judge, dissenting. This case is before

us on remand from the Supreme Court of the United

States. We have been directed to reconsider our earlier

decision in light of the memorandum of the Adminis-

trator of the Environmental Protection Agency of Sep-

tember 18, 1992. In my view, despite the varying inter-

pretations given the statute by the agency in the past,

we are not, under the circumstances here, entirely relieved

of our obligation under Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984),

to defer to the reasonable interpretation of the agency

charged with the administration of the statute. It is true

that the Supreme Court has said that “fajs a general

matter .. . the case for judicial deference is less compel-

ling with respect to agency positions that are inconsistent

with previously held views.” Pauley v. Bethenergy Mines,

Inc., 111 S. Ct. 2524, 2535 (1991). The Court has also

stressed, however, that “[a]n initial agency interpretation

is not instantly carved in stone.” Chevron, 467 US. at

863. Indeed, the agency has the continuing obligation to

ensure that its interpretation is reasonable by considering

“varying interpretations and the wisdom of its policy on

a continuing basis.” /d. at 863-64.

The reasonableness of the Administrator's interpreta-

tion must be assessed “not in a sterile textual vacuum, but

in the context of implementing policy decisions in a tech-

nical and complex arena.” /d. at 863. As the Solicitor

General graphically set out in his brief before the Supreme

Court, the basic problem is that Congress has simply

failed to address a major environmental policy question.

See Br. of the United States as Amicus Curiae at 11 n.6,

City of Chicago v. Environmental Defense Fund (No.

91-1328). Consequently, the Administrator has attempted

to resolve the matter on the basis of the available evi-

dence. Here, confronted with the split of authority be-

tween two courts of appeals, the Administrator took an-

other look at an admittedly ambiguous issue and reas-

sessed his earlier pronouncements. In my view, this was

responsible agency action and is deserving of our deferen-

tial review.

While the Administrator's approach differs somewhat

from the analysis of my colleagues in the Second Circuit

(and while I find Judge Haight’s presentation somewhat

more convincing than the Administrator's), I do not per-

ceive that tension to be a fundamental one. Accordingly,

I would affirm the judgment of the district court. Hope-

fully, Congress will make the policy decision that needs

to be made and the highest court in the land will be

spared the necessity of having to deal with what is, at

bottom, a problem for the legislative branch.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 90-3060

ENVIRONMENTAL DEFENSE FUND, ef al.,

Plaintiffs-A ppellants,

Vv.

Tur Crry or Cuicaco, et al.,

Defendants-A ppellees.

Appeal from the United States District Court

for the Northern District of [linois

No. 88 C 769—James B. Moran, Chief Judge

ARGUED May 10, 1991—DectpeD NOVEMBER 19, 1991

Before BAvuER, Chief Judge, POSNER, and RIPPLE,

Circuit Judges.*

Bauer, Chief Judge. In this case, we are asked to de-

termine whether the ash generated by a municipal solid

waste incinerator is “hazardous waste” that must be dis-

posed of in accordance with the provisions of Subtitle C

* This opinion was circulated among all judges of this court in

regular active service pursuant to Circuit Rule 40/f) because of an

apparent conflict with Environmental Defense Fund v. pony emote

Technologies, 725 F.Supp. 758 ($.D.N.Y. 1989), aff'd, 9231 F.2d 211

(2a Cir. 1991). No judge favored rehearing en hanc; Judge Richard

D. Cudahy did not participate.

of the Resource Conservation and Recovery Act of 1976,

42 U.S.C. § 6901-6992k (“RCRA”). The incinerator in

question—the Northwest Waste-to-Energy Facility—has

been owned and operated by the City of Chicago (“the

City”) since 1971. Faced with rapidly diminishing space

for landfill, the City has turned to innovative methods to

dispose of the approximately 2.5 million tons of solid

waste generated each year. The Northwest Facility was

one of the first modern waste-to-energy resource recovery

facilities in the United States and the only one in the

State of Illinois. Each day, it receives for processing 200

to 250 truckloads of refuse, the bulk coming from resi-

dential units. The plant incinerates 350,000 tons of waste

annually. The steam generated from the combustion of

waste is used to run the facility.

The plaintiffs, the Environmental Defense Fund, Inc..,

and Citizens for a Better Environment (collectively,

“EDF”), filed a complaint against the City and _ its

mayor alleging that the City violated provisions of RCRA

and its regulations governing the handling of hazardous

waste. EDF maintains that the City is violating RCRA

by unlawfully storing, transporting, disposing of, and

otherwise handling the by-product of the incineration at

the Northwest Facility, the 110,000 to 140,000 tons of

ash produced every year. According to the EDF, the

toxicity level of the ash is high enough to qualify it as a

hazardous waste subject to special treatment under Sub-

title C of RCRA. Between 1981 and 1987, thirty-five

samples of ash from the Northwest Facility were tested.

Out of these, thirty-two exhibited enough lead, cadmium,

or both, to meet the standard for Extraction Procedure

toxicity, which forms a part of Subtitle C.

Subtitle C establishes a regulatory scheme governing

the treatment, storage, and disposal of hazardous wastes.

(Non-hazardous waste is governed by Subtitle D of

RCRA.) Generators of hazardous waste must apply for

and receive a United States EPA identification number

before engaging in the treatment, storage, disposal,

transportation, or offering for transportation of hazardous

waste. See 40 C.F.R. § 262.12. Before shipping, hazard-

ous waste must be packaged, labelled, and marked accord-

ing to specific regulations. See 40 C.F.R. § 262.30-33.

Hazardous waste must be accumulated in approved con-

tainers and only for specified periods of time. 40 C.F.R.

§ 262.34. Generators of hazardous waste also must main-

tain certain records, and file biennial reports with the

EPA Regional Administrator. See 40 C.F.R. § 262.40-43.

The ash produced by the Northwest Facility is not dealt

with pursuant to this “cradle to grave” regulatory scheme.

Instead, it is shipped off to Michigan for burial in a

landfill cite that is not licensed to accept hazardous

wastes.

In the district court the parties filed cross motions for

summary judgment. The City argued that the ash pro-

duced at the Northwest Facility is exempt from regula-

tion under section 3001(i) of RCRA, 42 U.S.C. § 6921

(i), which provides that a resource recovery facility will

not be deemed to be “treating, storing, disposing of, or

otherwise managing” hazardous wastes for the purposes

of regulation if the facility meets certain requirements.

In addition to filing its own motion for summary judg-

ment, EDF also opposed the City’s motion on the ground

that the City had not demonstrated that the Northwest

Facility met the requirements of section 3001 (i).

On November 29, 1989, the district court issued a

memorandum and order, holding that section 3001 (i) ex-

empted the ash produced at resource recovery facilities

from regulation as a hazardous waste. See Environmental

Defense Fund v. City of Chicago, 727 F. Supp. 419, 424

(N.D. Ill. 1989). The district court, however, denied

both motions for summary judgment, allowing EDF ad-

ditional discovery to determine whether the Chicago fa-

cility met the requirements of section 3001(i). In July

1990, EDF stipulated that it would not contest the ade-

quacy of the Northwest Facility’s procedures for exclud-

ing hazardous wastes and that it would not oppose a re-

newed motion for summary judgment by the City. On

August 20, 1990, the district court granted the City’s

renewed motion for summary judgment. This appeal

followed.

This case turns on the construction of section 3001 (i).

To make sense of this statute, we must sort through con-

flicting, often confusing, pronouncements from Congress

and the EPA. Indeed, the EPA’s various interpretations

of the statute have muddied the waters to such an extent

that courts have failed to give it the deference normally

accorded to an agency’s construction of a statute it ad-

ministers. See, e.g., Environmental Defense Fund v. City

of Chicago, 727 F. Supp. at 424; Environmental Defense

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

766 (S.D.N.Y. 1989), aff'd, 931 F.2d 211 (2nd Cir.

1991). The Second Circuit, the only appeals court to in-

terpret section 3001(i) thus far, concluded that the stat-

ute exempts the ash remaining after the incineration of

municipal solid waste at a resource recovery facility from

regulation as a hazardous waste. Wheelabrator, 931 F.2d

at 213.

As a threshold issue, we must consider whether, as the

City suggests, this case has been rendered moot by pas-

sage of the 1990 amendments to the Clean Air Act. Sec-

tion 306 of the amendments provides in part that “[flor

a period of 2 years after the date of enactment . . . ash

from solid waste incineration units burning municipal

waste shall not be regulated by the Administrator of the

Environmental Protection Agency pursuant to Section

3001 of the Solid Waste Disposal Act.” Pub. L. No. 101-

549, 104 Stat. 2399 (1990). When Congress enacted

this provision, it was well aware that this matter was

pending on appeal. The accompanying committee report

explains, “[t]he conferees do not intend to prejudice or

affect in any manner ongoing litigation, including En-

vironmental Defense Fund v. Wheelabrator, Inc., 725 F.

Supp. 758 (2d Cir.) [sic] and Environmental Defense

Fund y. City of Chicago, Appeal No. 90-3060 (7th Cir.)

[sic], or any State activity regarding ash.” i. Rep. No.

952, 101st Cong., 2d Sess. 335, 342, reprinted in 1990

U.S.C.C.A.N. 3867, 3874.

What all this means is that the amendments to the

Clean Air Act do not render this matter moot, but rather

maintain the status quo until the time Congress reau-

thorizes RCRA. After that period expires, Congress may

determine whether it wishes to revise the statute with

regard to the ash question. Although we cannot say for

certain, it well may have been that Congress wanted to

see what the courts had to say on the issue before under-

taking any retooling of the current regulatory scheme.

Until then, the EPA is precluded from promulgating reg-

ulations on ash pursuant to section 3001(i). Nothing in

the amendments, however, suggests that the EPA may not

enforce the scheme now in place. What that covers, ex-

actly, is for us to determine.

Having concluded that the matter properly is before

us, we turn our attention to the district court’s decision.

As with all summary judgment determinations, we re-

view the matter de novo to decide whether the record as

a whole establishes that the defendant was entitled to

judgment as a matter of law. See, €.8., Santella v. City

of Chicago, 936 F.2d 328, 331 (7th Cir. 1991); Dieck-

hoff v. Severson, 915 F.2d 1145, 1148 (7th Cir. 1990).

Before we can proceed, we must trace our way through a

somewhat complicated statutory and regulatory scheme.

In 1980, EPA issued the “household waste exclusion,”

a regulation that explicitly exempted household waste

from the statutory definition of “hazardous waste.” See

45 Fed. Reg. 33,120 (codified as amended at 40 C.F.R.

§ 261.4(b)(1) (1987)). The exclusion had the effect of

releasing households and municipalities from the burden

of complying with the cumbersome requirements of Sub-

10a

title C. In the preamble to the regulation, the EPA stated

that, “[s]ince household waste is excluded in all phases

of its ‘Management, residues remaining after treatment

(e.g., incineration, thermal treatment) are not subject to

regulation as hazardous waste.” /d.

Congress never ratified this statement in the form of

legislation. Instead, it enacted section 3001(i) in 1984

as part of the Hazardous and Solid Waste Amendments

to RCRA to “clarify” the EPA’s household waste exclu-

sion. (Actually, Congress was interested in excluding

from the extremely complex regulations that apply to

facilities that specifically target hazardous waste munici-

= emg that inadvertently process hazardous ma-

erials that slip in with all the other junk. i

3001(i) provided the following: —

A resource recovery facility recovering energy from

the mass burning of municipal solid waste shall not

be deemed to be treating, storing, disposing of, or

otherwise managing hazardous wastes for the pur-

poses of regulation under this subsection if—

(1) such facility—

(A) receives and burns only—

(i) household waste (from single and

multiple dwellings, hotels, motels, and

other residential sources), and

(ii) solid waste from commercial or

industrial sources that does not con-

tain hazardous waste identified or

listed under this section. .. .

42 U.S.C. § 6921(i).

Unlike the EPA preamble, section 3001(i) does not

explicitly exempt the ash generated from resource recov-

ery facilities from regulation as a hazardous waste. None-

theless, each party to this litigation argues that the plain

words of section 3001(i) support its position. The EDF

lla

contends that the section 3001(i) exemption covers only

very specific activities of municipal incinerators that han-

dle household and commercial waste, including “treating.

storing, disposing of, or otherwise managing hazardous

wastes,” but not the generating of hazardous wastes. In

contrast, the City maintains that “managing” hazardous

wastes covers everything that a resource recovery facility

does, including the disposal of the ash residue resulting

from incineration of municipal solid wastes.

The EPA’s interpretation and the legislative history of

the statute do little to resolve this stand-off. Following

adoption of section 3001(i), the EPA incorporated its

provisions into EPA regulations. See 40 C.F.R. § 261.4

(b)(1). In a preamble to the new regulations, the EPA

explained:

The statute [section 3001(i)] is silent as to whether

hazardous residues from burning combined household

and non-household, non-hazardous waste are hazard-

ous waste. These residues would be hazardous wastes

under present EPA regulations if they exhibited a

characteristic. The legislative history does not di-

rectly address this question although the Senate re-

port can be read as enunciating a general policy of

non-regulation of these resource recovery facilities if

they carefully scrutinize their incoming wastes. On

the other hand, residues from burning could, in

theory, exhibit a characteristic of hazardous waste

even if no hazardous wastes are burned, for example,

if toxic metals become concentrated in the ash. Thus,

the requirement of scrutiny of incoming wastes

would not assure non-hazardousness of the residue.

EPA believes that the principal purpose of section

3001(g) [sic] was to prevent resource recovery fa-

cilities that may inadvertently burn hazardous waste,

despite good faith effort to avoid such a result, from

becoming subject to the Subtitle C regulations.

50 Fed. Reg. 28,725-26 (July 15, 1985).

12a

Although not an all-out endorsement, this statement

certainly runs in favor of subjecting the ash by-product

of incineration to Subtitle C regulation. But was, as the

EPA suggests, the legislative history silent on the ash

question? Both the Wheelabrator district court, as af-

firmed by the Second Circuit, and the district court here

held that the legislative history of RCRA demonstrates

that Congress intended to exempt resource recovery fa-

cilities—and the ash they produce—from hazardous waste

Statutes and regulations. See Environmental Defense

Fund v. City of Chicago, 727 F. Supp. at 424; Wheel-

abrator, 725 F. Supp. at 770. For support, both courts

heavily rely on a statement in the Report of the Senate

Committee on Environment and Public Works, which ac-

companied the proposed legislation. The Report stated

that all waste management activities of such facilities are

included within the household waste exclusion, including

‘the generation, transportation, treatment, storage and

disposal of waste... .” S. Rep. No. 284, 98th Cong., 2d

Sess. 61 (1983) (emphasis supplied). The Wheelabrator

district court indicated that the Report “could not be

more explicit”’:

It includes the term “generation,” that term upon

which EDF places so much emphasis. While it is

true that the legislation itself does not include the

term generation and that it is the legislation with

which we are concerned, the legislative history is pro-

bative on the issue of Congress’ intent. given that the

scope of the statute is unclear on its face.

725 F. Supp. at 765.

But was congressional intent, as suggested by the

Wheelabrator district court, that “explicit?” On October

2, 1987, six senators and a member of the House ( Repre-

sentative Florio) sent two letters to Lee Thomas of the

EPA. Both letters struck the same notes. Only the first

letter. signed by Senators Stafford, Durenberger, Chafee

Burdick, Baucus, and Mitchell, is reproduced here:

l3a

We are writing to urge that the Agency [EPA]

refrain from issuing any policy statements or legal

interpretations of the Resource Conservation and Re-

covery Act as it relates to the management of ash

generated by municipal solid waste incinerators

pending further consultation and coordination with

Congress. We are concerned that the Agency may

be on the verge of interpreting these requirements,

possibly in a manner inconsistent with the law, at a

time our Committee is considering legislation spe-

cifically resolving this issue.

In our view, section 3001(i) of the Solid Waste

Disposal Act, often known as RCRA, as amended in

1984 does not exempt owners or operators of mu-

nicipal solid waste incinerators from the obliga-

tions: 1) to determine whether the ash residues gen-

erated by the incineration process are hazardous

wastes, and 2) to handle ash exhibiting hazardous

waste characteristics as hazardous wastes in accord-

ance with the requirements of Subtitle C of RCRA.

Thus, we concur in the Agency’s statement in the

preamble to the July 15, 1985 codification rule that

in the 1984 amendments Congress did not “exempt

the regulation [sic] of incinerator ash from the burn-

ing of non-hazardous waste in resource recovery

facilities if the ash routinely exhibits a characteristic

of hazardous waste.”

Regulation of Municipal Solid Waste Incinerators: Hear-

ings on H.R. 2162 before the Subcommittee on Transpor-

tation and Hazardous Materials of the House Committee

on Energy and Commerce, 10\st Cong., Ist Sess. 1-2

(May 11, 1989) (“Hearings on H.R. 2162”).

In another development, on May 11, 1989, Congress-

man Thomas A. Luken, Chairman of the House Subcom-

mittee on Transportation and Hazardous Materials, called

a hearing on a proposed bill to regulate municipal solid

waste incinerator ash under Subtitle D of RCRA. The

l4a

Congressman made the following comments in his open-

ing statement:

A statutory ambiguity has caused a great deal of

uncertainty with respect to how this ash should be

regulated. The very basic question of whether or not

ash should be regulated under subtitle D, as a solid

waste, or under subtitle C as a hazardous waste.

remains ambiguous in the statute. . . . This uncer-

tainty has been exacerbated by conflicting signals

sent by the EPA. That is not a criticism of EPA.

Originally the EPA stated that incinerator ash must

be tested for toxicity, and managed accordingly, but

more recently the EPA has made various pronounce-

ments which conflict with that original policy. It

has become clear that legislative action is needed.

With regard to the EPA’s lack of clarity on the sub-

ject, the “conflicting signals” to which Congressman

Luken was referring begin with the preamble to the

household waste exclusion. It most definitely exempted

ash from regulation as a hazardous waste. The preamble

to the regulation that mirrored section 3001(i), however,

did not regard the statute as exempting from regulation

ash exhibiting characteristics of hazardous waste. This

difference is not explained away by later statements from

EPA officials. In December 1987, J. Winston Porter, the

Assistant Administrator for the Office of Solid Waste and

Emergency Response, testified before the Senate Subcom-

mittee on Hazardous Waste and Toxic Substances of the

Committee on Environment and Public Works. Porter re-

sponded to a question regarding incinerator ash:

Currently, EPA’s regulations merely restate the

Statutory language. In the preamble codifying this

Statutory language, however, EPA advanced an in-

terpretation of the statute that would subject ash

residue’s [sic] from energy-recovering MWC’s [Mu-

nicipal Waste Combustors] to Subtitle C regulation

if the ash exhibited a characteristic of hazardous

waste. The Agency has reexamined that interpreta-

15a

tion and now concludes that it may have been in

error. The Agency believes that the language and

legislative history of Section 3001(i) were probably

intended to exclude these ash residues from regula-

tion under Subtitle C.

It seems clear that Congress’ interest in Section

3001(i) was to encourage energy recovery. Under

the section, the reach of the household exclusion was

to be extended for facilities that recover energy. The

Agency's prior interpretation of the section would

restrict the exclusion with respect to ash residue for

facilities that recover energy as well as those that

do not. This appears inconsistent with the reach of

the household exclusion itself (which clearly covers

ash). It also appears inconsistent with the expressed

legislative intent that “[a]ll waste management ac:

tivities of such a facility, including the generation,

transportation, treatment, storage, and disposal of

waste shall be covered by the exclusion.”

Hearings on H.R. 2162, 16-17 (testimony of J. Winston

Porter).

Just a few months later, in May 1988, Sylvia Low-

rance, who was at that time the Director of the EPA's

Office of Solid Waste, offered the following testimony to

the same congressional hearing:

In our codification of [section 3001(i)] we stated

that, in our view, the provision excludes energy re-

covery facilities burning household waste along with

nonhazardous waste from commercial and industrial

sources from regulation under subtitle C.

With regard to the ash, however, produced from

such facilities, we said in a 1985 notice that the ash

generated by these facilities which exhibits a charac-

teristic of the hazardous waste must be managed as

a hazardous waste.

l6a

| We continue to follow that 1985 policy, and that

is Our current interpretation. However, there is sub-

stantial controversy surrounding that interpretation.

We are in litigation challenging the EPA’s inter-

pretation of section 3001(i). We believe the law is

ambiguous given it is silent with regard to treatment

of ash under that section.

We do believe it needs to be clarified. What we

believe is of paramount importance is that ash be

safely managed in a technically sound matter [sic].

Until this legal controversy is resolved, there is

going to continue to be uncertainty on the part of

communities trying to deal with their garbage crisis

with regard to what ultimate requirements and cost

will be for their municipal and waste management.

We very much support an approach such as the

one taken in H.R. 2162, which would provide clear

authority to the EPA to regulate municipal com-

bustor ash as a special waste under subtitle D of

RCRA.

Id. at 33 (testimony of Sylvia Lowrance).

So there you have it. In construing a statute, we

ordinarily have many tools at our disposal: the language

and apparent purpose of the statute, its background and

Structure, its legislative history, and the bearing of re-

lated statutes. What we have to work with here is a

Statute subject to varying interpretations, a foggy legis-

lative history, and a waffling administrative agency.

Where do we turn? The see-sawing statements from the

EPA to which the district court gave “little weight’ de-

serve no weight at all. The Report of the Senate Com-

mittee on Environment and Public Works, which accom-

panied the proposed legislation, included the generation of

waste within the household waste exclusion. Can we just

ignore the Report, even though the word “generating” is

nowhere to be found in the enacted statute?

17a

It has been argued, both in this circuit and, most

notably in the Supreme Court opinions of Justice Antonin

Scalia, that recourse to legislative history to clarify the

meaning of statutory language is, at best, a shaky en-

deavor. Justice Scalia has written that use of legislative

history

is neither compatible with our judicial responsibility

of assuring reasoned, consistent and effective appli-

cation of [statutes], nor conducive to a genuine ef-

fectuation of congressional intent, to give legislative

force to each snippet of analysis . . . in committee

reports that are increasingly unreliable evidence of

what the voting Members of Congress had in mind.

Blanchard v. Bergeron, 489 U.S. 87, 99 (1989) (Scalia,

J. concurring in part and concurring in the judgment).

And as our Brother Easterbrook has noted regarding

pre-enactment legislative history,

[ijt is a poor guide to legislators’ intent because it

is written by the staff rather than by members of

Congress, because it is often losers’ history... ,

because it becomes a crutch . . . , because it compli-

cates the task of execution and obedience (neither

judges nor those whose conduct is supposed to be

influenced by the law can know what to do without

delving into legislative recesses, a costly and uncer-

tain process ).

Matter of Sinclair, 870 F.2d 1340, 1343 (7th Cir. 1989).

In addition, post-enactment statements, such as we have

here, bear no necessary relationship to the forces at work

at the time of enactment: the preferences of the enacting

legislator and his or her constituency and the impact of

pressure groups.

Every time Congress enacts legislation, it is acting in

context. Although “[l]egislative history may be invalu-

able in revealing the setting of the enactment and the

assumptions its authors entertained about how their words

18a

would be understood,” Sinclair, 870 F.2d at 1342, state-

ments made before and after enactment are not neces-

sarily the final word as to meaning. Congress was well

aware of the EPA’s position on ash when it enacted section

3001(i). Although tossed around, the word “generation”

was not used in the final product. Why should we, then,

rely upon a single word in a committee report that did not

result in legislation? Simply put, we shouldn't. The ac-

tual words of the statute—the end product of the rough-

and-tumble of the political process—are the definitive

statement of congressional intent.

Our task becomes simpler if we just begin with what

the statute actually says. See Watt v. Alaska, 451 US.

259, 265 (1981). Section 3001(i) mentions “the treat-

ing. storing, disposing of or otherwise managing” of the

household and commercial waste,’ but fails to include

among these activities generating a different waste prod-

uct entirely. To borrow a phrase from computer pro-

grammers, resource recovery quite literally is “garbage

in, garbage out,” but the “garbage” that emerges from

the incineration process—ash—is fundamentally different

in its chemical and physical composition from the plastic,

paper, and other rubbish that goes in. It does not follow

that the generation of hundreds of tons of a whole new

substance with the characteristic of a hazardous waste

should be exempt from regulation just because Congress

wanted to spare individual households and municipalities

from a complicated regulatory scheme if they inadvert-

ently handled hazardous waste. Such a reading of section

3001(i) would be inconsistent with RCRA’s policy of

encouraging the careful management of materials that

pose a danger to human health and the environment.

Moreover, contrary to the City’s assertions, “otherwise

managing” and “generating” are not coextensive terms.

Statutory construction is a holistic endeavor: the only

permissible meaning is that which is compatible with the

“flesh and bones” of a law, from its overarching purpose

down to its individual words. Here, the individual words

19a

in RCRA are so carefully defined, they cannot be inter-

changeable. Hazardous waste “management” is defined

to include a limited number of activities, including the

“collection, source separation, storage, transportation,

processing, treatment, recovery, and disposal of hazardous

wastes.” 42 U.S.C. § 6903(7). The statute goes on to

define some of these terms. Two of the most impor-

tant words for our purposes are defined in the following

manner. “Treatment” means:

any method, technique, or process, including neutral-

ization, designed to change the physical, chemical, or

biological character or composition of any hazardous

waste so as to neutralize such waste or so as to ren-

der such waste nonhazardous, safer for transport,

amenable for recovery, amenable for storage, or re-

duced in volume. Such term includes any physical

activity or processing designed to change the physical

form or chemical composition of hazardous waste so

as to render it nonhazardous.

42 U.S.C. § 6903(34). The term “disposal” means:

the discharge, deposit. injection, dumping, spilling,

leaking, or placing of any solid waste or hazardous

waste into or on any land or water so that such solid

waste or hazardous waste or any constituent thereof

may enter the environment or be emitted into the

air or discharged into any waters, including ground

waters.

42 U.S.C. § 6903(3). These definitions exclude “genera-

tion,” which is separately defined as “the act or process of

producing hazardous waste.” 42 U.S.C. § 6903/6).

There is no overlap whatsoever, then, between hazardous

waste “management” and hazardous waste “generation.”

It follows, therefore, that if the language of the exclusion

is limited to “management” activities of resource recovery

facilities, “generating” activities are subject to regulation.

20a

We should take at face value a statute's plain language

so long as our reading is not absurd; we should ignore

a legislative history that results in a reading that is.

It is unlikely that Congress, in an express effort to pro-

mote the proper disposal of dangerous substances that

Otherwise would seep into the ground and water table,

would sanction the dumping of massive amounts of haz-

ardous waste in the form of ash into ordinary landfills.

Accordingly, we hold that the ash generated from the

incinerators of municipal resource recovery facilities is

subject to regulation as a hazardous waste under Sub-

title C of RCRA. The decision of the district court is

REVERSED.

2la

Rippie, Circuit Judge, dissenting. For the reasons set

forth in Environmental Defense Fund v. Wheelabrator

Technologies, 725 F. Supp. 758 (S.D.N.Y. 1989}, aff'd,

931 F.2d 211 (2d Cir. 1991), I would affirm the judg-

ment of the district court.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

22a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 88 C 769

ENVIRONMENTAL DEFENSE FUND, INC. and

CITIZENS FOR A BETTER ENVIRONMENT,

Plaintiffs,

vs.

Ciry OF CHICAGO and RICHARD M. DALEY,

Mayor of the City of Chicago,’

Defendants.

MEMORANDUM AND ORDER

Plaintiffs Environmental Defense Fund, Inc. (EDF)

and Citizens for a Better Environment (CBE) bring this

action against the City of Chicago and its Mayor, seek-

ing injunctive relief and civil penalties under Section

7002 of the Resource Conservation and Recovery Act

(RCRA). Plaintiffs allege that the City has violated

certain provisions of RCRA, 42 U.S.C. § 6901 ef seq.,

by generating hazardous waste and not complying with

the hazardous waste requirements under RCRA, subtitle

C. 42 U.S.C. §$§ 6921-6939(b). We have before us

plaintiffs’ and defendants’ cross-motions for summary

judgment pursuant to Rule 56 of the Federal Rules of

Civil Procedure. For the following reasons, both motions

are denied and plaintiffs are granted leave for additional

discovery.

? Pursuant to Fed.R.Civ.P. 25(d) Richard M. Daley is substituted

as a defendant in this action. He succeeds Eugene Sawyer as Mayor

of the City of Chicago. ,

23a

FACTS

The City is the owner and operator of a facility known

as the Chicago Northwest Incinerator, located at 700

N. Kilbourn Avenue in Chicago. This was one of the

first modern waste-to-energy resource recovery facilities

in the United States and is the only such facility in Ili-

nois (aff. of John Ellis, plant manager, Dept. of Streets

and Sanitation, Chicago, at € 3). Resource recovery fa-

cilities use highly engineered and controlled incineration

technology to process solid wastes, reducing their volume

and recovering usable energy in the form of steam or

electricity (aff. of Mosi Kitwana, Deputy Commissioner

of Sanitation, Chicago, at § 10). The Northwest facility

receives 200 to 250 truckloads of refuse each weekday

and processes some 350,000 tons of solid municipal waste

annually (Ellis aff. € 7). According to Mr. Kitwana, at

least 99% of the waste received at the facility consists

of household waste (Kitwana aff. € 14). The remainder

of the waste consists of commercial waste—primarily

paper and foodstuffs brought into the United States by

international flights arriving at O’Hare Airport—and

small quantities of contraband seized by law enforcement

officials (Kitwana aff. € 14). The City contends that this

waste, and the small amounts of commercial waste col-

lected in Chicago, do not contain hazardous materials.

The facility is supposed to maintain rigid inspection

procedures. Household waste shipments are allegedly

spot-checked to ensure that they do not contain hazardous

wastes and commercial shipments carefully scrtened—

all to prevent the acceptance of hazardous wastes (Kit-

wana aff. € 15). Commercial waste shipments must also

be approved by the Bureau of Sanitation prior to accept-

ance. Finally, all commercial waste is supposed to be

physically examined and any hazardous materials found

are to be sent back to the generator for proper disposal

(Kitwana aff. € 15).

Once the waste has been delivered, and inspected for

hazardous materials, it is processed through the facility

24a

and reduced to an ash residue. The status of this ash

is what is at issue in this matter, Plaintiffs allege that

the ash is hazardous waste * and that the City has failed

to comply with the cradle-to-grave regulatory system that

governs storage, transport, disposal, and other handling

of hazardous wastes. See 42 U.S.C. $§ 6921 et seq.; 40

CFR §§ 262.10 et seq.

The City contends that the ash remaining after incin-

eration at the Northwest facility is from a non-hazardous

waste stream and thus exempt from hazardous waste

regulations. It moves for summary judgment alleging

that there are no genuine issues of material fact in dis-

pute, and that 49 U.S.C. § 6921(i) and 49 CFR § 261.4

(b)(1) specifically exclude all waste management ac-

tivities of resource recovery facilities that receive house-

hold waste and non-hazardous commercial waste. On

cross-motions, plaintiffs contend that the generation of

toxic ash is not exempt from hazardous waste regulation

and that only certain activities of resource recovery fa-

cilities are exempt.

DISCUSSION

The central issue in this action is whether the ash resi-

due remaining after incineration is a hazardous waste

under subtitle C, or only a solid waste regulated under

subtitle D. Statutory ambiguity has caused a great deal

of uncertainty with respect to how this ash should be reg-

ulated. Plaintiffs contend that toxic ash generated by re-

source recovery facilities is hazardous and subject to

hazardous waste regulation. Defendants, on the other

hand, contend that ash remaining after the incineration

of household and non-hazardous commercial waste is ex-

empt from subtitle C regulation. We agree.

? Plaintiffs contend that 32 samples of ash generated at the North-

west Facility have been tested for toxicity pursuant to the EP

toxicity test. Of those samples, 29 have exhibited levels of lead

and/or cadmium that exceed the level qualifying it as hazardous

waste (pl. cplt. 7 15).

25a

The Resource Conservation and Recovery Act was en-

acted by Congress to address our growing national solid

waste crisis, to promote the protection of health and the

environment, and to conserve valuable material and

energy resources. 42 U.S.C. § 6902. The RCRA classi-

fies wastes as either hazardous (regulated under C, 42

U.S.C. &8 6921-6939(b)) or as non-hazardous (regulated

under D, 42 U.S.C. $§ 6941-6949(a)). Subtitle C im-

poses rigorous safeguards and procedures on hazardous

waste management, while D essentially forbids the dis-

posal of solid waste in open dumps and provides signifi-

cantly less regulation than C. When Congress first en-

acted the RCRA in 1976 it did not initially identify

which wastes were subject to hazardous waste regula-

tion. Rather, it required the EPA to develop and promul-

gate criteria for identifying hazardous wastes. 42 U.S.C.

§ 6921(a). In 1980 the EPA issued regulations identify-

ing and listing hazardous wastes. Included in these regu-

lations was a provision known as the “household waste

exclusion.” 45 Fed.Reg. 33,120 (May 19, 1980). That

provision exempted the entire household waste stream,

including the ash residue from household waste, from

hazardous waste regulation and provided, in pertinent

part, as follows:

§ 261.4 EXCLUSIONS

(b) Solid wastes which are not hazardous

wastes. The following solid wastes are not

hazardous wastes:

(1) Household waste, including household

waste that has been collected, transported.

stored, treated, disposed, recovered (e.¢..

refuse-derived fuel) or reused. “Household

waste” means any waste material (includ-

ing garbage, trash and sanitary wastes in

septic tanks) derived from households (in-

cluding single and multiple residences,

hotels and motels. )

26a

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

amended at 40 CFR § 261.4(b)(1) (1982).

In the preamble to these regulations the EPA restated

its view that ash from the incineration of household

waste should be excluded from hazardous waste regula-

tion, stating:

The Senate language makes clear that household

waste does not lose the exclusion simply because it

has been collected. Since household waste is ex-

cluded in all phases of its management, residues re-

maining after treatment (e.g., incineration, thermal

treatment) are not subject to regulation as a hazard-

ous waste. Such wastes, however, must be trans-

ported, stored, treated and disposed in accord with

the applicable state and federal requirements con-

cerning the management of solid waste... .

45 Fed.Reg. 33,098 (May 19, 1980) (emphasis added).

When Congress amended the RCRA in 1984 to clarify

the household waste exclusion, it left unmodified the

EPA’s 1980 interpretation that ash from the incineration

of household waste should be excluded from hazardous

waste regulation. 42 U.S.C. § 6921(i). Additionally,

Congress expanded this exclusion to include resource re-

covery facilities that also burn non-hazardous commercial

or industrial solid waste. The statute currently reads:

(i) Clarification of Household Waste Exclusion

A resource recovery facility recovering energy

from the mass burning of municipal solid waste

shall not be deemed to be treating, storing, dis-

posing of, or otherwise managing hazardous

wastes for the purpose of regulation under this

subchapter, if—

(1) such facility—

(A) receives and burns only—

27a

(i) household waste (from single and

multiple dwellings, hotels, motels and other

residential sources), and

(ii) solid waste from commercial or in-

dustrial sources that does not contain haz-

ardous waste identified or listed under this

section, and

(B) does not accept hazardous wastes

identified or listed under this section, and

(2) the owner or operator of such facility has

established contractual requirements or other

appropriate notification or inspection procedures

to assure that hazardous wastes are not re-

ceived at or burned in such facility.

42 U.S.C. § 6921(i) (1984).

The fact that Congress amended the RCRA without

directly renouncing the EPA’s 1980 interpretation that

ash from household waste is excluded from hazardous

waste regulation is significant. “Congressional failure

to revise or repeal [an] agency’s interpretation is per-

suasive evidence that the interpretation is the one in-

tended by Congress.” Young v. Community Nutrition

Institute, 476 U.S. 974, 983 (1986) (quoting NLRB v.

Bell Aerospace Co., 416 U.S. 267, 275 (1974), rev'd on

other grounds, NLRB v. Hendricks County Rural Electric

Membership Corp., 454 U.S. 170 (1981)). Congress

having left untouched the EPA’s 1980 interpretation is

persuasive evidence that it intended to exclude ash such

as this from subtitle C regulation.

Plaintiffs argue, however, that Congress did not intend

the household waste exclusion to apply to generators of

hazardous wastes such as defendants. According to plain-

tiffs, the 1984 amendment exempts only certain activities

of resource recovery facilities (namely the treating, stor-

ing, disposing of or otherwise managing certain specified

28a

wastes) and does not exclude the generation of hazardous

waste. Indeed, the current RCRA statute contains no

language indicating that waste such as ash, generated by

resource recovery facilities, should be excluded from haz-

ardous waste regulation. Therefore, plaintiffs’ claim that

defendants must comply with the RCRA’s hazardous

waste requirements because the ash defendants are gen-

erating is hazardous. We find this reasoning unpersua-

sive.

When Congress amended the RCRA and clarified the

household waste exclusion, it meant to exclude all of the

waste management activities of a resource recovery fa-

cility from subtitle C regulation. This in.orpretation is

consistent with the RCRA’s stated policy goal of encour-

aging commercially-viable resource recovery facilities and

removing impediments which may hinder their develop-

ment and operation. The Senate Report which accom-

panied the 1984 RCRA amendments supports this read-

ing and, in fact, defines the waste management activities

of a resource recovery facility to include generation. The

report provides that

[a]ll waste management activities of [resource re-

covery facilities,] including the generation, transpor-

tation, treatment, storage and disposal of waste shall

be covered by the exclusion... .

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

phasis added ).

That the EPA 1980 household waste exclusion does not

include the words “generation” or “ash,” but nevertheless

excludes the generation of ash from hazardous waste reg-

ulation, provides further support that Congress meant to

exclude ash generated from household waste from subtitle

C. See 45 Fed.Reg. 33,120 (May 19, 1980). Plaintiffs

do not dispute that the EPA initially interpreted the

household waste exclusion as excluding all of the waste

management activities of municipal incinerators accept-

29a

ing only household wastes. In fact, plaintiffs concede that

the 1980 household waste exclusion was a “waste stream”

exclusion (pl. mem. at 20). Nonetheless, plaintiffs con-

tend that the 1984 RCRA statute does not pertain to the

entire waste stream but, rather, is limited to a class of

resource recovery facilities that must meet certain re-

quirements. We disagree. Because the original house-

hold waste exclusion covered the management of ash resi-

due, and the 1984 clarification left untouched this inter-

pretation, we conclude that Congress must have meant to

adopt the EPA's position. Had Congress intended to

change this interpretation, it would have so indicated in

the 1984 amendment.

The United States Conference of Mayors and the Na-

tional Resource Association have filed an amicus brief in

support of the City’s position and the Institute of Re-

source Recovery has done likewise.” They claim that

landfill capacity for hazardous wastes is limited, is being

rapidly depleted and is not being replaced, and that a

requirement that ash be disposed of as a hazardous waste

would imperil the entire resource recovery program.

Plaintiffs dispute that gloomy assessment. Whether that

assessment is true or not, we are not persuaded that

Congress changed obligations by implication and without

specifically addressing and rejecting those concerns.

Since the 1984 amendment, the EPA has issued new

regulations interpreting the household waste clarification

provision. 40 CFR 261.4(b)(1) (1985). Plaintiffs argue

that these regulations provide further support that Con-

gress did not intend to exclude the generation of ash from

hazardous waste regulations. In the preamble to these

regulations, the EPA seemed to believe that the 1984 stat-

ute modified the earlier policy on ash. The EPA stated

that it did not see the 1984 amendments as an attempt

8 We here grant their motions to file those briefs.

to exempt the regulation of ash residue.’ See 50 Fed Reg.

28.726 (1985). Recent statements from some FPA offi.

ciils, following the issuance of the 1985 regulations, have

also indicated that the EPA does not consider ash to be

exempt trom hazardous waste regulation. See Testimony

ot Sylvia Lowrance, Director, Office of Solid Waste, FPA,

at Regulation of Municipal Solid Waste Incinerators:

Hearings Betore the Subcommittee on Transportation and

Hazardous Materials of the House Committee on Fnerey

and Commerce, 101st Congress, Ist Session (May 11,

L989).

Other EPA officials who have examined the 1985 inter-

pretation have concluded that that interpretation, how-

ever, may have been in error. On December 3, 1987. J.

Winston Porter, assistant administrator for Solid Waste

and Emergency Response, testified before the Senate Com-

mittee on Environment and Public Works and stated that

* The EPA interpreted the clarification as follows:

The statute is silent as to whether hazardous residues from

burning combined household and non-household, non-hazardous

Waste are hazardous waste. These residues would be hazardous

wastes under present EPA regulations if they exhibited a char-

acteristic. The legislative history does not directly address this

question although the Senate report can be read as enunciating

a general policy of non-regulation of those resource recovery

facilities if they carefully scrutinize their incoming wastes

On the other hand, residues from burning could, in theory.

exhibit a characteristic of hazardous waste even if no hazardous

Wastes are burned, for example, if toxic metal becomes concen-

trated in the ash. Thus, the requirement of scrutiny of incom-

ing Wastes could not assure non-hazardousness of the residue.

EPA believes that the principal purpose of section 30011 g)

(sic) was to prevent resource recovery facilities that may in-

advertently burn hazardous waste, despite good faith efforts

to avoid such a result from becoming subject to the Subtitle

C regulations. EPA does not see in this provision an intent to

exempt the regulation of incinerator ash from the burning of

non-hazardous waste in resource recovery facilities if the ash

routinely exhibits a characteristic of hazardous waste.

50 Fed. Reg. 26,725-26 (7/15/85).

31a

[tlhe Agency has reexamined that [1985] interpre-

tation and now concludes that it may have been in

error, The Agency believes that the language and

legislative history of Section 3001(i) [42 U.S.C.

3 6921f1)| were probably intended to exclude these

ash resides from regulation under Subtitle C.

It seems clear that Congress’ interest in Section

300111) was to encourage energy recovery. Under

the section, the reach of the household exclusion was

to he extended for facilities that recover energy. The

Agency s prior interpretation of the section would

restrict the exclusion with respect to ash residue for

facilities that recover energy as well as those that

do not. This appears inconsistent with the reach of

the household exclusion itself (which clearly covers

ash). It also appears inconsistent with the expressed

legislative intent that “[ajll waste management ac-

tivities of such a facility, including the generation,

transportation, treatment, storage, and disposal of

waste shall be covered by the exclusion... .”

S.Rep. at 61.

In addition, after stating in the 1985 interpretation

that it did not perceive the RCRA amendments as an

attempt to exempt the regulation of ash residue, the EPA

indicated its confusion on the matter by stating that it

does not believe the HSWA [1984 Hazardous and

Solid Waste Amendments] impose new regulatory

burdens on resource recovery facilities that burn

household and other non-hazardous waste, and the

Agency has no plans to impose additional responsibil-

ities on these facilities. Given the highly beneficial

nature of resource recovery facilities. any future ad-

ditional regulation of their residues would have to

await consideration of the important technical and

policy issues that would be posed in the event serous

questions arise about the residues.

50 Fed.Reg. 28, 726 (1985).

32a

As the agency primarily responsible for administering

the RCRA, the EPA should be entitled to some deference

in its interpretations regarding the regulation of ash

residue. However, because the EPA’s classification of

ash rests on a questionable reading of the statute and

has been, at best, inconsistent, it should be given less

weight than it would normally be accorded.* See /mmi-

gration and Naturalization Service v. Cardoza-Fonseca,

480 U.S. 421, 446 n.30 (1986) (“An agency interpreta-

tion of a relevant provision which conflicts with the

agency's earlier interpretation is entitled to considerably

less deference than a consistently held agency view”).

For this reason, we find that the EPA’s 1985 interpreta-

tion—classifying ash from household and commercial

waste as hazardous if it exhibits characteristics of toxi-

city-—does not affect our decision.

Thus, contrary to plaintiffs’ interpretation of RCRA,

we conclude that ash remaining after the incinceration of

household waste and non-hazardous commercial waste is

exempt from regulation if the resource recovery facility

satisfies the criteria of § 3001(i).

Defendants insist that the Chicago Northwest Incin-

erator does meet those criteria and have submitted affi-

davits to the effect that virtually all the waste received

and burned is household waste, that the very limited

commercial and industrial waste processed does not con-

tain hazardous wastes, that the facility does not accept

hazardous wastes and that appropriate procedures are in

place to assure that hazardous wastes are not received at

or burned in the facility. Plaintiffs dispute those conclu-

5 Even if the EPA’s 1985 interpretation was entitled to deference

in these proceedings, it would not be binding on this court. “Inter-

pretative rules are statements as to what the administrative officer

thinks the statute or regulation means, whereas legislative rules

have effects completely independent of the statute.” United Tech-

nologies Corp. v. United States Environmental Agency, 831 F.2d

714, 718 (D.C. Cir. 1987) (citations omitted) (emphasis in original).

33a

sions but they can, for now, point to little other than the

toxicity tests to support their disagreement. Until now

the focus of this lawsuit has been the statutory interpre-

tation issue. Plaintiffs have lost on that issue. They are

not foreclosed, however, from conducting reasonable dis-

covery to test the defendants’ affidavit assertions. Rule

56(f) so permits. Until they have had an opportunity to

do so, we cannot conclude that defendants, beyond reason-

able dispute, have complied with the conditions needed to

exempt resource recovery facilities from hazardous waste

regulation when burning household and commercial waste.

Although defendants maintain that the incinerator does

not accept hazardous wastes, and that they have estab-

lished sufficient notification and inspection procedures to

prevent this, these issues must be regarded as disputed

issues of material fact that preclude the award of sum-

mary judgment.

CONCLUSION

For the foregoing reasons, both plaintiffs’ and defend-

ants’ cross-motions for summary judgment are denied;

plaintiffs are granted leave for additional discovery.

/s/ James B. Moran

JAMES B. MORAN

Judge

United States District Court

November 29, 1989.

34a

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Case Number: 88 C 769

ENVIRONMENTAL DEFENSE FUND, [NC., et al.

Vv.

City OF CHGO et al.

JUDGMENT IN A CIVIL CASE

[Docketed Aug. 21, 1990]

Jury Verdict. This action came before the Court for

a trial by jury. The issues have been tried and the jury

has rendered its verdict.

&) Decision by Court. This action came to trial or hear-

ing before the Court. The issues have been tried or

heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED

That based upon the Memorandum and Order of No-

vember 27, 1989, the stipulation of the parties and de-

fendants’ renewed motion for summary judgment, the

renewed motion for summary judgment is granted, with-

out prejudice to plaintiffs’ right to_appeal the final judg-

ment entered herein.

Dated: August 20, 1990

H. STUART CUNNINGHAM

Clerk

/s/ Willie A. Haynes

WILLie A. HAYNES

(By) Deputy Clerk

35a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 88 C 0769

Judge James B. Moran

ENVIRONMENTAL DEFENSE FUND, INC. and

CITIZENS FOR A BETTER ENVIRONMENT,

Plaintiffs,

CiTy OF CHICAGO, et al.,

Defendants.

STIPULATION OF PLAINTIFFS ENVIRONMENTAL

DEFENSE FUND AND CITIZENS FOR A BETTER

ENVIRONMENT AND DEFENDANTS

CITY OF CHICAGO ET AL.

WITH REGARD TO ENTRY OF SUMMARY

JUDGMENT IN FAVOR OF DEFENDANTS

1. On November 27, 1989, this Court ruled herein

that, as a matter of law, ash generated by the Northwest

Waste-to-Energy Facility (“Facility”) owned by defend-

ant City of Chicago is exempt from regulation as a haz-

ardous waste under Subtitle C of the Resource Conserva-

tion and Recovery Act (“RCRA”) if defendants meet

the two statutory conditions set forth in section 3001 (i)

of RCRA. Memorandum Opinion and Order of November

27, 1989. Those conditions pertain to the existence of

contracts or other appropriate procedures to assure that

the Facility does not receive or process hazardous wastes,

and to non-acceptance of hazardous wastes by the Facil-

ity. The Court directed the parties to engage in discovery

36a

with regard to whether the Facility meets these two

Statutory conditions.

2. Subsequent to issuance of the Court’s Memorandum

and Order, discovery has been completed.

3. Defendants stipulate that, within 60 days of the

entry of this Stipulation they will implement the changes

specified in Attachment A to this Stipulation.

4. Contingent upon defendants’ performance of the

condition stated in paragraph 3 of this Stipulation, plain-

tiffs hereby stipulate that they will not contest, challenge,

or otherwise pursue in this litigation:

(a) the adequacy of the Facility’s current procedures

for excluding hazardous wastes;

(b) whether the Facility currently accepts hazardous

wastes for processing;

for excluding hazardous wastes;

(d) whether the Facility previously accepted hazard-

ous wastes for processing.

5. Contingent upon defendants’ performance of the

conditions stated in paragraph 3 of this stipulation, plain-

tiffs further stipulate that they will not oppose a renewed

motion by defendants for entry of summary judgment in

favor of defendants. In so stipulating, plaintiffs ex-

pressly reserve their right to appeal the final judgment

insofar as the judgment rests upon the rulings set forth

in the Court’s Order and Memorandum of November 27,

1989.

37a

/s/ Karen Florini

KAREN FLORINI

Environmental Defense Fund

1616 P Street, NW Suite 150

Washington, D.C. 20036

(202) 387-3500

LESLIE ANN JONES

JOHNSON, SCHAFF & JONES

343 S. Dearborn

Chicago, IL 60604

(312) 341-9366

Counsel For Plaintiffs

Dated: July 2, 1990

Respectfully submitted,

S/ Kelly R. Welsh

KELLY R. WELSH

Corporation Counsel

EMILY NICKLIN

Deputy Corporation Counsel

HENRY L. HENDERSON

NANCY MARREN

Asst. Corporation Counsel

180 N. LaSalle, Suite 704

Chicago, IL 60601

(312) 744-7340

Counsel For Defendants

June 27, 1990

38a

ATTACHMENT A

To the Acceptable Waste Certification form used by the

City of Chicago at the Northwest Waste-to-Energy Facil-

ity, the following material underlined shall be added to

the form, and material bracketed shall be deleted as

follows:

“Hazardous waste defined as a waste or combination

of wastes, which has been identified by characteristic

or listing as hazardous pursuant to Section 3001 of

the Resource Conservation and Recovery Act of

1976 or pursuant to regulations promulgated by the

Illinois Pollution Control Board, [and which poses a

threat to health and safety].

“Oil, cesspool or other human wastes . . . and small

quantity generator wastes as defined at 40 C.F.R.

sec. 260.10.”

39a

CITY OF CHICAGO

DEPARTMENT OF STREETS AND SANITATION

ACCEPTABLE WASTE CERTIFICATION

DATE MONTH DAY YEAR

I understand that the Northwest Waste-to-Energy Facil-

ity accepts only household waste and non-hazardous and

otherwise acceptable commercial and Industrial waste,

and that under no circumstances will the Northwest-

Waste-to-Energy Facility accept any of the following un-

acceptable waste:

Hazardous waste, defined as a waste or combination

of wastes which has been identified, by characteristic

or listing, as hazardous pursuant to Section 3001 of

the Resource Conservation and Recovery Act of 1976

or pursuant to regulations promulgated by the Illi-

nois Pollution Control Board.

Any waste which because of its nature or bulk will

adversely affect operation of the facility.

Oil, cesspool or other human wastes, human and

animal remains, hospital or medical waste, wire and

cable, tree logs and wood greater than twelve inches

in diameter, liquid waste, non-burnable construction

material and/or demolition debris, asbestos and as-

bestos products, explosives including ammunition and

fire arms, chemicals including any empty containers

thereof, such as cleaning fluid, flammables, petroleum

products including drained oils, paints, acids, caus-

tics, pesticides, insecticides, poisons, drugs. and small

quantity generator wastes as defined in the resource

conservation and recovery Act (RCRA) at 40

C.F.R. section 260.10.

I hereby certify that the waste delivered in this vehicle

contains no unacceptable waste, as defined above. I un-

derstand that should the operators of the Northwest

Waste-to-Energy Facility discover unacceptable waste in

40a

this vehicle, that it will not be disposed of at the North-

west Waste-to-Energy Facility and must be returned to

the owner.

DRIVER TIME STAMP

VEHICLE LICENSE NO.

WASTE AUTHORIZATION FORM #

4la

[SEAL]

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

Washington, D.C. 20460

[Sept. 18, 1992]

The Administrator

MEMORANDUM

TO: All Regional Administrators

SUBJECT: Exemption for Municipal Waste Combus-

tion Ash From Hazardous Waste Regula-

tion Under RCRA Section 3001(i)

PURPOSE

This Memorandum sets forth the United States En-

vironmental Protection Agency's (“EPA” or “Agency”)

decision under section 3001(i) of the Resource Con-

servation and Recovery Act (“RCRA”), 42 U.S.C.

§ 6921(i),’ to treat ash generated from the combustion

of nonhazardous municipal solid waste at resource re-

covery facilities (hereinafter “MWC ash”) as exempt

from hazardous waste regulation under RCRA Subtitle

C. EPA believes that MWC ash can be regulated in a

manner that will be protective of human health and the

1 As part of the Hazardous and Solid Waste Amendments of 1984,

Congress amended RCRA by adding section 3001(i), which provides,

in pertinent part:

(i) Clarification of household waste exclusion

A resource recovery facility recovering energy from the mass

burning of municipal solid waste shall not be deemed to be

treating, storing, disposing of, or otherwise managing haz-

ardous waste for purposes of regulation under [Subtitle C]

if . . . such facility . . . receives and burns only . . . household

waste ... and solid waste from commercial or industrial sources

that does not contain hazardous waste... .

RCRA section 3001(i)(1), 42 U.S.C. § 6921(i)(1). Section 3001(i)

is codified in EPA’s regulations as part of the household waste

exclusion. 40 C.F.R. 261.4(b) (1).

42a

environment under RCRA Subtitle D. The determination

set forth herein supersedes the Agency's earlier view of

section 3001(i) as not exempting MWC ash from hazard-

Ous waste regulation. See 50 Fed. Reg. 28702, 28725-26

(1985).

ANALYSIS

Text of the Statute

EPA’s determination that MWC ash is exempt from

hazardous waste regulation is consistent with the text of

section 3001(i). As proclaimed by the title of section

3001(i)—*Clarification of household waste exclusion” —

in enacting that provision, Congress was building upon

the regulatory framework it earlier had established. In

enacting RCRA in 1976, Congress indicated that solid

waste from households, which frequently includes ma-

terials that may contain hazardous constituents, should

not be regulated as hazardous waste under Subtitle C.

S. Rep. No. 94-988, 94th Cong., 2d Sess. 16 (1976).

EPA codified Congress’ intent in the so-called “household

waste exclusion,” promulgated in 1980, which provides

that “any material . . . derived from households . . . is

not hazardous waste. . . .” 40 C.F.R. 261.4(b) (1),

In the preamble to the Federal Register notice an-

nouncing the household waste exclusion, EPA Clearly

Stated that the exclusion extends to ash remaining after

household waste is incinerated: “Since household waste

is excluded in all phases of its management, residues

after treatment (e.g., incineration, thermal treatment) are

not subject to regulation as hazardous waste.” 45 Fed.

Reg. 33066, 33098 (1980). The Agency justified its

determination that ash derived from the incineration of

household waste is subject to the exclusion on the ground

that Congress intended to “exclude waste streams gener-

ated by consumers at the household level.” Jd. ( emphasis

added ).

43a

In enacting section 3001(i), Congress arguably ex-

tended the regulatory exclusion for ash derived from the

incineration of household waste to similar residues gen-

erated by resource recovery facilities from the incinera-

tion of household waste and nonhazardous commercial

and industrial solid waste. To the extent that household

waste alone is incinerated, section 3001(i) coincides with

EPA’s earlier interpretation of the household waste exclu-

sion as exempting ash derived from such waste from haz-

ardous waste regulation. The inclusion in section 3001 (i)

of nonhazardous commercial and industrial waste, along

with household waste, suggests that Congress may have

intended that MWC ash resulting from the combustion of

those combined wastes also should not be subject to reg-

ulation as a hazardous waste.

In addition, congressional intent to exempt MWC ash

from hazardous waste regulation is suggested by the por-

tion of section 3001(i) which provides that a resource

recovery facility shall not be deemed to be “treating, stor-

ing, disposing of, or otherwise managing” hazardous waste.

(Emphasis added.) Nothing ordinarily is “disposed of”

when a resource recovery facility receives or stores a non-

hazardous solid waste, and the burning of such waste

generally is regarded as a type of treatment under RCRA.

See RCRA sections 1004(3) and (34), 42 U.S.C.

§$ 6903(3) and (34) (definitions of “disposal” and

“treatment”). As a result, since MWC ash ordinarily is

the only waste “disposed of” by such a facility, Congress

arguably intended that MWC ash not be regarded as a

hazardous waste.

For the foregoing reasons, EPA believes that the text

of section 3001(i) is consistent with the Agency's deter-

mination that MWC ash is exempt from hazardous waste

regulation.

44a

Legislative History

EPA’s determination that MWC ash is exempt from

hazardous waste regulation also is consistent with the

legislative history of section 3001(i). First, a Report of

the Senate Committee on Environmental and Public

Works addressing section 3001(i) specifically states that

“[aljll waste management activities of such a [resource

recovery] facility, including the generation, transporta-

tion, treatment, storage and disposal of waste shall be

covered by the exclusion.”? S. Rep. No. 98-284, 98th

Cong., Ist Sess. 61 (1983) (emphasis added).* Since

MWC ash ordinarily is the only waste “generated” by a

resource recovery facility, Congress arguably demon-

strated its intent that MWC ash not be regarded as a

hazardous waste.

Second, the Senate Report states that section 3001 (i)

was enacted to “encourage commercially viable resource

recovery facilities and . . . remove impediments that may

hinder their development and operation.” S. Rep. No.

98-284, 98th Cong., Ist Sess. 6] (1983). As noted

? Unlike the legislative history for section 3001(i), the statute

does not expressly state that the “generation” of waste by a re-

able interpretation that best serves the goals embodied in section

3001 ( i). EPA has exercised that discretion in adopting the inter-

pretation set forth herein, as discussed more fully below.

*The Senate Report is entitled to special weight because the

Conference Committee adopted, without change, the Senate ver-

In passing the Senate version of section 3001(i), Congress also

impliedly adopted the Senate’s interpretation of that provision set

45a

above, one of the significant features of section 3001 (i)

is that it applies to resource recovery facilities that burn

both household waste and nonhazardous commercial and

industrial waste. If section 3001(i) were interpreted as

not exempting MWC ash derived from the incineration of

combined household waste and nonhazardous commercial

and industrial waste from regulation as hazardous waste,

the policy goal stated in the Senate Report could be sub-

stantially frustrated. As a practical matter, the cost bene-

fit to a resource recovery facility in being able to burn

both household and nonhazardous commercial and _in-

dustrial waste would be significantly reduced if MWC ash

must be disposed of as a hazardous waste, as discussed

more fully below.

Third, the Senate Report refers to the wastes being

incinerated in resource recovery facilities as “waste

Streams,” as follows:

Resource recovery facilities often take in

“household wastes” mixed with other non-hazardous

waste streams from a variety of sources other than

“households.” . . . New section 3001f{i] 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.

Id. (emphasis added). As noted above. the Agency jus-

tified its determination that ash derived from the incinera-

tion of household waste is excluded from hazardous waste

regulation on the ground that Congress intended to “ex-

clude waste streams generated by consumers at the house-

hold level.” 45 Fed. Reg. 33066, 33098 (1980) (em-

phasis added). In also using the term “waste stream” in

the Senate Report, Congress arguably demonstrated its

intent that section 3001(i) be construed as extending the

household “waste stream” exclusion to the entire “waste

Stream” at a resource recovery facility, including MWC

46a

ash derived from the burning of combined household and

nonhazardous commercial and industrial waste.

In sum, the legislative history of section 3001(i) is

consistent with the Agency's determination to exempt

MFC ash from hazardous waste regulation.

Policy Considerations

As discussed above, EPA believes that the text and

legislative history of section 3001(i) are consistent with

the Agency's view that MWC ash is exempt from hazard-

ous waste regulation. Since Congress did not in the

Sstatuie or legislative history expressly address the precise

issue of whether MWC ash should be exempt from haz-

ardous waste regulation, the Agency has discretion to

adopt a reasonable interpretation that best serves the goals

embodied in section 3001(i). EPA has exercised that

discretion in adopting the interpretation set forth herein.

EPA believes that the two Statutory goals embodied in

section 3001 (i)—protecting the environment and promot-

ing resource recovery from nonhazardous solid waste—

are best served by exempting MWC ash from hazardous

waste regulation.

EPA has determined that MWC ash can be regulated in

a manner that will be protective of human health and the

environment under Subtitle D. In particular, EPA re-

cently promulgated new criteria for municipal solid waste

landfills at 40 C.F.R. Part 258, 56 Fed. Reg. 50978

(1991). Municipal landfills and monofills receiving MWC

ash must comply with those criteria.* The Part 258 cri-

*In the preamble to the Federal Register notice announcing the

final Part 258 criteria, EPA stated that “[t)he purpose of part 258

is to establish minimum national criteria for municipal solid waste

landfills, including [such landfills] used for _ . disposal of non-

hazardous municipal waste combustion ( MWC) ash (whether the

ash is co-disposed or disposed of in an ash monofill).” See also re-

sponse to comment document nos. 155, 168, 171, 172, and 199 in the

public record for the Part 258 rulemaking (docket number F-91-

CMLF-FFFFF).

47a

teria impose requirements on ftaunicipal landfills that far

exceed those previously imposed, including more stringent

location restrictions, facility design and operating criteria,

ground-water monitoring requirements, corrective action

requirements, financial assurance requirements, and clos-

ure and post-closure care requirements. The Agency be-

lieves the disposal of MWC ash in municipal landfills

subject to the Part 258 criteria will be protective of human

health and the environment.®

If information comes to EPA’s attention suggesting

that MWC ash is being managed or disposed of in a

manner that is not protective of human health and the

environment under Subtitle D, the Agency will consider

additional actions, including providing technical assist-

ance, issuing guidance documents, and, if appropriate,

promulgating additional regulations to address those situa-

tions. In addition, at individual sites, if the disposal of

MWC ash may present an imminent and substantial

endangerment to human health or the environment, EPA

may require responsible persons to undertake appropriate

action under section 7003(a) of RCRA, 42 USC.

§ 6973(a).

Resource recovery from municipal solid waste is an

important component of EPA's integrated waste manage-

ment approach, which involves the complementary use

of a variety of practices to safely and effectively manage

municipal solid waste.” Such activity advances the statu-

* The promulgation of the Part 258 criteria is an important step

in ensuring that MWC ash can and will be regulated in a manner

that will be protective of human health and the environment under

Subtitle D. The promulgation of those criteria also has served as

an impetus for the Agency's reevaluation of its earlier view of sec-

tion 3001(i) as not exempting MWC ash from hazardous waste

regulation. 50 Fed. Reg. 28702, 28725-26 (1985).

*That approach establishes a hierarchy that prefers source re-

duction (i.e., the design, manufacture, purchase, or use of materials

to reduce the amount or toxicity of solid waste generated) and re-

cycling (i.e., the process by which materials are collected and used

48a

tory objective of RCRA (the Resource Conservation and

Recovery Act) to reduce the volume of waste that re

quires disposal. See id. at section 1002(b)(08), 42 USC,

S OYOLTEDICS). Tt also advances the statutory objective

of recovering significant amounts of energy from solid

waste. See id. at sections 1002(d)(2), 42 U.S.C. § 6901

(d)(2). and 1003(a)C1E), 42 USC. §$ 6902(a)C14).

For those reasons, EPA agrees with Congress’ view, set

forth im the Senate Report discussed above, that impedi-

ments hindering the development and operation of com-

mercially viable resource recovery facilities should be

climinated where practicable.

For nonhazardous municipal solidwaste that can be

disposed of either in a Subtitle D landfill or combusted in

a resource recovery facility, the comparative economic

desirability of those two alternatives significantly is im-

pacted by the application of section 3001(i) to MWC

ash.” If MWC ash is not exempt under 3001(i) from

hazardous waste regulation, a strong economic incentive

may exist to dispose of raw municipal solid waste in Sub-

title D landfills, rather than combust that waste in re-

source recovery facilities. The costs associated with the

disposal of MWC ash in Subtitle C facilities are dra-

matically higher than in Subtitle D landfills. Although

costs vary significantly from region to region, when aver-

aged on a national basis there is over a ten-fold differ-

as raw materials for new products) over solid waste combustion

(including combustion for resource recovery) and landfilling. Solid

Waste combustion, however, has played and will continue to play an

important role in the Agency's integrated waste management ap-

proach because the entire solid waste stream cannot be reduced

through source reduction and recycling. EPA encourages communi-

ties to choose the mix of solid waste options that are most appropri-

ate for them, considering local economic, environmental, and other

factors.

*In addition to cost, Subtitle D landfill capacity limitations also

may be a significant factor in determining whether municipal solid

waste is combusted in resource recovery facilities.

49a

ence between the cost of disposal of MWC ash in a

Subtitle C facility compared to a Subtitle D landfill: the

cost of transporting and disposing of MWC ash in a

cost of doing so in a Subtitle D landfill is approximately

$42.00 per ton. For states that combust substantial por-

tions of their solid waste (in resource recovery and other

combustion facilities), such as Connecticut (65°07 ), Mas-

sachusetts (47°7 ), and Maine (45% ), this cost differ-

ential could be enormous.

CONCLUSION

In sum, exempting MWC ash from hazardous waste

regulation is consistent with the text and legislative his-

tory of section 3001(i), and best serves the statutory

goals embodied in that provision of protecting the envi-

ronment and promoting resource recovery from nonhaz-

ardous solid waste. For the foregoing reasons, EPA has

determined that MWC ash is exempt from regulation as a

hazardous waste under RCRA Subtitle C.

/s/ William K. Reilly

WILLIAM K. ReILLy

cc: Don T. Clay, Assistant Administrator

Office of Solid Waste and Emergency Response

(OS-100)

Herbert H. Tate, Assistant Administrator

Office of Enforcement (LE-133)

Raymond B. Ludwiszewski, Acting Genera!

Counsel (LE-130)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.