# Amicus Curiae Brief — Chicago v. Environmental Defense Fund

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1994
- **Citation:** 511 U.S. 328

## Text

| Suprema Court, U.S,
FilLeED

No. 92-1639 | APR 30 1993

\ss

is CLERK
IN THE —_

Supreme Court of the United States

OCTOBER TERM, 1992

City OF CHICAGO, et al.,
Petitioners,
Vv.

ENVIRONMENTAL DEFENSE FUND, et al.,
Respondents.

On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Seventh Circuit

BRIEF OF THE NATIONAL LEAGUE OF CITIES
AS AMICUS CURIAE IN SUPPORT
OF THE PETITION FOR CERTIORARI

DAVID R. BERZ *

DAVID B. HirRD

FRANK PANOPOULOS
WEIL, GOTSHAL & MANGES
1615 L Street, N.W.
Washington, D.C. 20036
(202) 682-7000

* Counsel of Record
for the Amicus Curiae

—_——— EFF

WILGON - Eres Printinea Co.. Inc. . 789.0096. Wasiinaton OC. 20001

QUESTION PRESENTED

Whether Section 3001(i) of the Resource Conserva-
tion and Recovery Act, 42 U.S.C. § 6921(i), which pro-
vides 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 other-
wise managing hazardous wastes,” exempts from hazard-
ous waste regulation ash generated by the burning of
municipal solid waste at such a facility.

(i)

ii
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 tor a Better Environment.

— a

TABLE OF CONTENTS

QUESTION PRESENTED

PARTIES TO THE PROCEEDING

TABLE OF AUTHORITIES ........

INTEREST OF THE AMICUS CURIAE ....................

SUMMARY OF ARGUMENT

REASONS FOR GRANTING THE PETITION FOR
A WRIT OF CERTIORARI

I.

II.

THE SEVENTH CIRCUIT'S HOLDING WILL
EXACERBATE THE CURRENT SHORTAGE
OF LANDFILL SPACE, MAKE UNCER-
TAIN THE ECONOMIC VIABILITY OF RE-
SOURCE RECOVERY FACILITIES, AND
IMPOSE SIGNIFICANT COSTS ON LOCAL
GOVERNMENTS

A. Resource Recovery Is An Important Aspect
of MSW Management |

B. Classifying MSW Ash as a Subtitle C Waste
Will Create a Disincentive to Resource Re-
covery

C. Requiring Treatment of MSW Ash as a
Hazardows Waste Will Place Unnecessary
Financial Burdens on Local Governments

THE SEVENTH CIRCUIT'S DECISION
FRUSTRATES CONGRESS’ GOAL OF EN.
COURAGING RESOURCE RECOVERY

A. Regulation of MSW Resource Recovery Is
Separate from the Regulation of Hazardous
Wastes Under Subtitle C of RCRA

(iii)

Page

10

11

12

iv

TABLE OF CONTENTS—Continued
Page

B. The Household Waste Exclusion Expressly
Exempts All Aspects of MSW Management
from RCRA's Hazardous Waste Regulatory

CONCLUSION EATS pt SEI AD Sco da 20

APPENDIX sanesinanietiisceiictnamadbcaeamiiiiamamsiienen la

es ee, ee

Vv

TABLE OF AUTHORITIES

CASES: Page
American Mining — v. EPA, 824 F.2d 1177
(D.C, Cir. 1987) .. 19
Chevron USA, Ine. v. "Natural ‘Resources ‘Defense
Council, Inc., 467 U.S. 837 (1984)... 18
Environmental Defense Fund, Inc. v. Wheelabra-
tor Technologies, Inc., 981 F.2d 211 (2d Cir.
1991), aff'g 725 F. Supp. 758 (S.D.N.Y. 1989),
cert. denied, 112 S. Ct. 458 (1991) 2000. 4
Garcia v. San Antonio Metropolitan Transit Auth.,
Ss ee 2
Massachusetts Mutual Life Ins. Co. v. United
States, 288 U.S. 269 (1988) 20.0... cccceccccceeeceeee 17
NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974).. 17
National League of Cities v. Usery, 426 U.S. 833
(1976) . 2
Young v. Community Nutrition Institute, 476 U. S.
I iN laa 17
Zuber v. Allen, 396 U.S. 168 (1964) 2000. 17
STATUTES:
Resource Conservation and Recovery Act, 42
ne a eusnananes 12
42 U.S.C. § 6901 (bb) (8) once 12
i ne 12
42 U.S.C. § 6903 (27) ............... ren sdeeaaasinatiiae 19
42 U.S.C. § GOOS (B46) nnn cccccecccccccceneeceeeees 19
eens Seek eS cae 12
42 U.S.C. § GOST (i) on ccccccceceeceeenee Psst
i 4 | | eM ent EES 7
EAE RN a Ee 7
42 U.S.C. § 6942 (c) (10) once 13
i 13
AE 12
Hazardous and Solid Waste Amendments of 1984,
Pub. L. No. 98-616, 98 Stat. 3221 oe... 16
Section 223, 98 Stat. 8262 .................ccccccccccesceeees 16
Solid Waste Disposal Act Amendment of 1980,
Pub. L. No. 96-482, § 32, 94 Stat. 2334 ............... 18
Pub. L. No. 94-580, 90 Stat. 2795 (1976) ................ 12

vi
TABLE OF AUTHORITIES—Continued

REGULATIONS:

ETE EN CL eS OTE
45 Fed. Reg. 33,084 (May 19,1980) _....................
45 Fed. Reg. 33,088-89 (May 19,1980)...
45 Fed. Reg. 33,097 (May 19, 1980) 0...
45 Fed. Reg. 33,099 (May 19, 1980) 0.
45 Fed. Reg. 33,120 (May 19,1980) 00.0... .......
56 Fed. Reg. 50,978 (Oct. 9, 1991) 00000
56 Fed. Reg. 50,988 (Oct.9,1991) 0000000000...
56 Fed. Reg. 50,992 (Oct. 9, 1991) 00.0000.

RULE:

a a

LEGISLATIVE HISTORY:

H.R. Conf. Rep. No. 1133, 98th Cong., 2d Sess.
(1984), reprinted in 1984 U.S.C.C.A.N. 5576...

H.R. Rep. No. 1491, 94th Cong., 2d Sess. (1976),
reprinted in 1976 U.S.C.C.A.N. 6238 ..........

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

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

122 Cong. Rec. H1147 (Sept. 27,1976)

122 Cong. Rec. H1153 (Sept. 27, 1976) ...............

MISCELLANEOUS:

George Judson, Anguished Plea from Bridgeport
for Fiscal Relief, N.Y. Times, June 8, 1991, at
I ie eceaeueecie catenin al aka tal tania
Jonathan V.L. Kiser, Municipal Waste Combustion
in the United States: An Overview, Waste Age,
S = | as aaaeieen Sie
Martin V. Melosi, Garbage in the Cities (1981)...
National League of Cities, City Fiscal Conditions
GER RES SE a RR nag
National Solid Wastes Management Association,
Landfill Capacity in the Year 2000 (1989)...
National Solid Wastes Management Association,
1990 Landfill Tipping Fee Survey (1991)...
Homer A. Neal & J.R. Schubel, Solid Waste Man-
agement and the Environment, the Mounting
Garbage and Trash Crisis (1987) 00.0...

vii
TABLE OF AUTHORITIES—Continued

The 1991 Municipal Waste Combustion Guide,
Waste Age, Nov. 1991, at 27 NN Sa a aS
U.S. Department of Commerce, City Government
Finances 1989-90 fanetieniathetadbnnedensensasemeenseneimens
U.S. Department of Commerce, Statistical Ab-
stract of the United States 1992
U.S. Environmental Protection Agency, EPA/530
SW-88-011A, Report to Congress, Solid Waste
Disposal in the United States, Executive Sum-
mary (Oct. 1988)

COCO OOC THOS 4006688858586 6O80e COE SS08s SOCCCCs

Page

1]

IN THE
Sipreme Cont of the United States

OcToBER TERM, 1992

No, 92-1639

Ciry oF CHicaco, et al.,
. Petitioners,
ENVIRONMENTAL DEFENSE FUND, et al.,
eo Respondents.
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Seventh Circuit

BRIEF OF THE NATIONAL LEAGUE OF CITIES
AS AMICUS CURIAE IN SUPPORT
OF THE PETITION FOR CERTIORARI

INTEREST OF THE AMICUS CURIAE

The National League of Cities (“NLC”) is a not-for-
profit corporation organized in 1933 to assist municipali-
tics in performing their functions. Almost 15,000 munici-
palitics are members of and participate in the activities of
the NLC. The members of the NLC have a compelling
interest in the legal issues pertaining to the incineration
of municipal solid waste (“MSW”) and the interpretation
of the Clarification of Household Waste Exclusion found
in Section 3001(i) of the Resource Conservation and
Recovery Act, 42 U.S.C. § 6921(i).'

' The parties’ letters of consent have been filed with the Clerk
pursuant to Rule 37.2.

2

The Court has recognized in the past that sanitation is
a traditional function of local government and that local
government bears the financial burden of this responsi-
bility.” Cities and counties around the country, faced
with diminishing MSW landfill capacity, increasing landfill
tipping fees and great difficulties in siting new landfills,
have invested heavily in resource recovery and combustion
systems to manage MSW. Thus, 176 MSW combustors,
owned both by local governments and private companies,
now handle approximately 17% of the MSW generated
in the United States. Because each of these facilities, in-
cluding those privately owned, serves the MSW manage-
ment needs of local governments, and because these facili-
ties represent tremendous capital investments by local gov-
ernments, the NLC and its members have a great financial
stake in the outcome of this litigation. In addition to
its financial interest in the issues presented in this case,
the NLC has an interest in protecting municipal decision-
making on local waste management issues. Because the
Seventh Circuit's decision below will impose substantial
additional costs on jurisdictions which operate resource
recovery facilities, in many situations making further use
of such facilities economically infeasible, local autonomy
over MSW management is imperilled.

SUMMARY OF ARGUMENT

Below, the Seventh Circuit concluded that the ex-
emption from the hazardous waste regulatory regime
which Congress extended to resource recovery facilities
burning MSW under Section 3001(i) of the Resource
Conservation and Recovery Act (“RCRA”), 42 U.S.C.
$ 6921(i), see App., infra, did not include the ash

2 See National League of Cities v. Usery, 426 U.S. 833, 851
(1976) (sanitation is “typical of [the services| performed by state
and local governments in discharging their dual functions of ad-
ministering the public law and furnishing public services”) ; Garcia
v. San Antonio Metropolitan Transit Auth., 469 U.S. 528, 575
(1985) (Powell, J., dissenting).

3

produced from burning MSW. The Seventh Circuit re-
affirmed its initial ruling after this Court vacated that
decision and remanded this case for reconsideration in
light of an intervening policy memorandum by the En-
vironmental Protection Agency (“EPA”) in direct conflict
with the appellate court's first holding.’ The Seventh Cir-
cuit’s latest decision is inconsistent with the language of
Section 3001(i) and its legislative history and contrary
to the reasonable interpretation offered by the federal
agency charged with implementing the statute. Moreover,
the consequences of the decision will defeat the very
purpose for which Congress adopted the exemption—the
encouragement of resource recovery.

Starting with the enactment of RCRA in 1976, and
through two sets of amendments in 1980 and 1984, Con-
gress sought to keep the management of MSW separate
and apart from the regulatory regime relating to hazard-
ous waste. Congress also sought to encourage local gov-
ernments to burn MSW at resource recovery facilities to
promote the generation of energy and to save scarce
landfill space. To that end, Congress in 1984 adopted
Section 3001(i), which expressly exempts all operations
of MSW resource recovery facilities from RCRA’s haz-
ardous waste regulatory program.

If the Seventh Circuit’s decision is not reversed, there
will be a substantial disincentive for local governments
to use resource recovery facilities to handle their MSW.
From an economic standpoint, it is simply cheaper for
many local governments to dispose of untreated MSW in
a sanitary landfill than to burn the same material in a
resource recovery facility and dispose of the ash in a
hazardous waste landfill. If the Seventh Circuit's decision
stands, local governments will be obliged by economic
considerations to choose landfilling of untreated MSW
over the use of resource recovery facilities, very few new

’ EPA's memorandum is reproduced in the Petition for Certiorari
at App. 4la.

4

resource recovery facilities will be built, and the limited
space available for landfilling will be more quickly ex-
hausted. Thus, the Seventh Circuit’s interpretation of
Section 3001(i) defeats the statute’s overriding purpose.

Currently, there is a conflict between the Seventh Cir-
cuit’s decision in this case and the decision of the Second
Circuit in Environmental Defense Fund, Inc. v. Wheel-
abrator Technologies, Inc., 931 F.2d 211 (2d Cir. 1991),
aff'g 725 F. Supp. 758 (S.D.N.Y. 1989), cert. denied,
112 S. Ct. 453 (1991), which held that the ash from a
resource recovery facility is covered by the exemption in
Section 3001(i). Moreover the rule of the Seventh Cir-
cuit is directly contrary to the official position of the
EPA, the agency charged with administering RCRA. Be-
cause of the conflict, local governments outside of the
Second and Seventh Circuits are faced with uncertainty
about the legal requirements which relate to their han-
dling of MSW ash. The uncertainty interferes with their
ability to formulate plans for handling MSW in a lawful,
but cost effective manner, discourages investments in new
resource recovery facilities, and exposes local govern-
ments to lawsuits.

REASONS FOR GRANTING THE PETITION
FOR A WRIT OF CERTIORARI

I. THE SEVENTH CIRCUIT’S HOLDING WILL EX-
ACERBATE THE CURRENT SHORTAGE OF
LANDFILL SPACE, MAKE UNCERTAIN THE
ECONOMIC VIABILITY OF RESOURCE RECOV-
ERY FACILITIES, AND IMPOSE SIGNIFICANT
COSTS ON LOCAL GOVERNMENTS

A. Resource Recovery Is An Important Aspect of
MSW Management

This country faces a significant landfill crisis. While
there were approximately 10,000 operating MSW landfills
in 1976, only approximately 6,500 remained in operation

5

by 1988. Many of these will be forced to close as a
consequence of regulations promulgated by the Environ-
mental Protection Agency (“EPA”) in 1991.° As rapidly
as landfill capacity has decreased, tipping fees at remain-
ing MSW landfills have increased. Between 1988 and
1990 average upping fees increased 17% nationally.°
Moreover, the landfill crisis is compounded by severe re-
gional capacity shortages, prompting many cities and
counties to ship MSW to distant jurisdictions or across
state lines and thereby adding significant transportation
costs as well as disposal surcharges. For instance, a 1989
study reported that 11 New Jersey counties shipped their
MSW out of state and that over half the state’s refuse
was sent to other regions of the country."

Incineration has played a significant role in MSW dis-
posal. In 1938, approximately 600 to 700 cities and
towns burned their garbage and rubbish.” However, use
of incineration waned as landfilling became more eco-
nomical, and by 1974 only 160 incinerators and resource
recovery facilities were in operation.” Today, resource
recovery facilities and incinerators have again become a
vital part of the MSW management system. They are
increasingly important and popular due to the shortage

456 Fed. Reg. 50,978, 50,988 (Oct. 9, 1991); U.S. Environmental
Protection Agency, EPA/530-SW-88-011A, Report to Congreas,
Solid Waste Disposal in the United States, Executive Summary at
1 (Oct. 1988).

5 See 56 Fed. Reg. at 50,992.

® National Solid Wastes Management Association, 1990 Landfill
Tipping Fee Survey 6 (1991). In the midwest and the mid-Atlantic
regions of the country, fees increased by 31° and 20%, re-

spectively.

7 National Solid Wastes Management Association, Landfill Ca-
pacity in the Year 2000, at 5 (1989).

* Martin V. Melosi, Garbage in the Cities 217 (1981).
% Id.

6

and expense of landfill space. Incineration reduces pres-
sure on landfill capacity by reducing the volume of MSW
by up to 90% and the mass by approximately 75%."
Jurisdictions which burn portions of their MSW streams
and then landfill the remaining ash reduce landfill tipping
fees and transportation costs significantly. In 1991, 176
resource recovery facilities and incinerators burned more
than 31 million tons of MSW, or 17% of the nation’s
total MSW stream."’ If the 57 projects currently in plan-
ning and construction stages are completed, capacity will
be increased to 53 million tons per year, or 24° of the
estimated total volume of MSW that will be generated in
the year 2000."

In addition to saving landfill space, resource recovery
facilities provide substantial other environmental and cco-
nomic benefits. One ton of MSW burned in a resource
recovery plant provides enough energy to light one
thousand 100-watt light bulbs for one hour, power 500
hair dryers for one hour, or furnish electricity to an ordi-
nary apartment for one month.’ A portion of the energy
generated by resource recovery facilities is used to oper-
ate the plants themselves, making the facilities self-
sufficient, and the remainder is sold and the proceeds
applied to the facility's operating expenses, further reduc-
ing the cost of MSW disposal to local government.

B. Classifying MSW Ash as a Subtitle C Waste Will
Create a Disincentive to Resource Recovery

If MSW ash is reclassified as a hazardous waste, re-
source recovery facility operators will be required to dis-

—— - —

1 Homer A. Neal & J.R. Schubel, Solid Waste Management and
the Environment, the Mounting Garbage and Trash Crisis 117

(1987).

1! Jonathan V.L. Kiser, Municipal Waste Combustion in the
United States; An Overview, Waste Age, Nov. 1991, at 27.

12 Jd.
18 Neal & Schubel, supra note 10, at 108.

7

pose of that ash only at landfills which have obtained
applicable state or federal treatment, storage and disposal
permits under the strict requirements of Subtitle C of
RCRA, 42 U.S.C. §§ 6924, 6925. As a consequence of
the stricter environmental control requirements and the
added risk of liability inherent in handling hazardous
wastes, the cost of disposing of MSW ash in a hazardous
waste landfill will be substantially greater than the cost
of putting the ash in MSW landfills or in ash monofills.
EPA estimates that, on a national average, the cost of
disposing MSW ash in a Subtitle C landfill is approxi-
mately ten times as great as doing so in a Subtitle D
landfill. See EPA Memorandum, Petition for Certiorari
at App. 49a. The prohibitive cost of using Subtitle C
landfills for MSW ash disposal is illustrated by the situa-
tion of Hennepin County, Minnesota. Hennepin County
estimates its cost to dispose of MSW ash as a hazardous
waste to be $150 to $200 per ton. This is three to four
times the $50 per ton which the county pays for ash
disposal in a MSW landfill or monofill. Moreover, the
cost is approximately six to seven times the national
average for tipping fees at MSW landfills, which is $26.56
per ton.'* Furthermore, if all the MSW ash currently pro-
duced is diverted to hazardous waste landfills, hazardous
waste landfill charges will likely increase significantly due
to the added demand for space. Thus, the nation’s lim-
ited hazardous waste landfill capacity would be taxed
substantially and shortages would result.

By increasing the cost of ash disposal so dramatically,
the Seventh Circuit's ruling below will create a significant
economic disincentive to resource recovery. For instance,
the City of Akron, Ohio, estimates the following: the
cost of landfilling one ton of MSW is $50; the cost of
incinerating one ton of MSW and landfilling the ash in
a MSW landfill is $57; and the cost of incinerating one

1* National Solid Wastes Management Association, 1990 Landfill
Tipping Fee Survey 6 (1991).

ton of MSW and disposing of the ash in a hazardous
waste landfill is $92. Thus, for Akron, it would cost
almost twice as much to burn a ton of MSW and take
the residue to a hazardous waste landfill than to simply
dispose of the untreated MSW in a sanitary landfill. Sim-
ilarly, Montgomery County, Ohio, estimates that incin-
erating MSW and disposing of the ash as a hazardous
waste would be approximately three times as costly as
disposing uncombusted MSW in a MSW landfill in the
first place.

Likewise, New York City, which incinerates over one
million tons of MSW annually, estimates that its cost per
ton would increase from approximately $100 to over
$300 if the ash is designated as hazardous, This would
increase New York's MSW disposal costs by over $200
million per year. By way of comparison, the cost of di-
verting the MSW waste stream directly to a MSW landfill
without any incineration is only $30 per ton."” For
Marion County, Oregon, landfilling MSW ash as a haz-
ardous waste would almost double the cost of MSW
disposal, raising it from the current cost of $46.95 per
ton to $80.10 per ton. This can be compared with costs
of $36 per ton to send MSW directly to a landfill with-
out incinerating it.

As the examples above show, requiring that MSW ash
be treated as a hazardous waste will make the incinera.
tion process economically infeasible in many communi-
ties and may result in disposal of all the MSW generated
by these communities in sanitary landfills. Consequently,
MSW landfill capacity will begin to diminish at an even
faster rate and tipping fees will increase accordingly.
Thus, pure economics will force many cities and coun-

15 This figure, however, is far below market rates because New
York owns and operates its own landfili. Furthermore, the $30 per
ton figure does not include the cost of new landfill construction to
compensate for lost capacity.

9

ties to choose landfilling of MSW over resource recovery
if the ash residue must be handled as a hazardous waste.

As a result of the economic disincentives created by
the Seventh Circuit's decision, resource recovery will
cease to be a viable option for many communities. More
over, facilities in the planning or construction stage may
be canceled and the future viability of existing facilities
will be jeopardized) The 57 plants currently in the plan-
hing or construction stages represent enormous develop.
ment costs "* to both local governments and private own
ers throughout the country who have relied on the
RCRA’s statutory goal of encouraging resource recovery
and the explicit exemption of MSW resource recovery
facilities from Subtitle C regulation provided by Congress
in Section 3001(i)."" Importantly, the Seventh Circuit's
decision also results in geographical inequities by making
MSW management far more expensive for municipalities
in Illinois, Indiana, and Wisconsin than for local gov-
ernments located in other circuits. To resolve this un-
certainty and inequity, the Court should grant the pe-
tition for certiorari to determine a national rule which

' In 1985, the cost of construction of a resource recovery facility
capable of processing 1000 tons of MSW per day was $80 million
Neal & Schubel, supra note 10, at 117.

'T The jurisdictions with publicly owned resource recovery facili-
ties in the advance planning or construction stages include: Lisbon,
Connecticut; Delaware Solid Waste Authority plant, near Millaburg,
Delaware; Lee County, Florida; Mid-Maine Waste AC, Auburn,
Maine; Montgomery County, Maryland; Oakland County, Michigan;
Dakota County, Minnesota; St. Louis, Missouri; Mercer County,
New Jersey; Monmouth County, New Jersey; Morris County, New
Jersey; Union County, New Jersey; Mecklenburg County, North
Carolina; Montgomery County, Pennsylvania; Kingston, Rhode
Island; Johnston, Rhode Island; and Nashville, Tennessee. T/«
1991 Municipal Waste Combuation Guide, Waste Age, Nov. 1991,
at 27. Numerous other plants, planned and financed by private com-
panies, will serve other local governmenta, which will pay tipping
fees for MSW disposal at these facilities.

10

local governments can rely upon in making MSW plan-
ning decisions.

C. Requiring Treatment of MSW Ash as a Hazardous
Waste Will Place Unnecessary Financial Burdens
on Local Governments

The financial burden of providing sanitation and solid
waste disposal services has been increasing substantially
for local governments, as has the cost of providing other
essential services. At the same time, the federal govern-
ment has drastically decreased its role in providing finan-
cial support to local governments. For example, local
governments received approximately 9% of their revenues
from the federal government in 1980, but only 3.6%
in 1990,""

A study conducted by the National League of Cities
in 1991 illustrates the financial plight of the cities. Al-
most 61% of the cities surveyed reported that 1991

general fund expendiures were expected to exceed reve—

nues, and over 26% said that expenditures would exceed
revenues by more than 5%." The bankruptcy of the
City of Bridgeport, Connecticut, is but one example of
the desperate financial circumstances facing many cities.”

Further, 66.3% of the responding cities reported that
the cost of solid waste disposal was one factor beyond

1*U.S. Department of Commerce, Statistical Abstract of the
United States 1992, at 294.

1° National League of Cities, City Fiscal Conditions in 1991, at
iii (1991).

20 See George Judson, Anguished Plea from Bridgeport for Fiscal
Relief, N.Y. Times, June 8, 1991, at 1. It is interesting to note
that Bridgeport invested substantially in a resource recovery facil-
ity which went on line in 1988.

11

their control contributing to fiscal difficulties.’ Over
10% of cities reported that landfill, refuse, solid waste
and recycling expenses comprise the single factor that
most adversely affected city expenditures.”

The Seventh Circuit's ruling will significantly increase
MSW management costs by compelling local governments
to pay for disposal of MSW ash in expensive hazardous
waste landfills or to pay, either directly or indirectly
through higher tipping fees, for increased MSW landfill
space. If obligated to spend more for solid waste disposal,
local governments will be even more disadvantaged in
furnishing other needed services to their constituents. Like
solid waste disposal costs, necessary service costs have
been rising faster than have revenues. For example, while
city government revenues rose by 9.5% between 1988
and 1990, solid waste management costs rose by 12.5%.”
Over the same period, health costs rose by 15.3%, police
protection costs by 11.1%, corrections costs by 26.9%,
and judicial and legal administration costs by 17.3% .**

Il. THE SEVENTH CIRCUITS DECISION FRUS-
TRATES CONGRESS’ GOAL OF ENCOURAGING
RESOURCE RECOVERY

Congress consistently has sought to promote two ob-
jectives relating to the handling of MSW: (1) keeping
the management of MSW separate and apart from
RCRA'’s hazardous waste management regime, and (2)
facilitating resource recovery as an option for managing
MSW in order to save scarce landfill space and promote

*! National League of Cities, supra note 19, at 31. Solid waste
disposal costs ranked higher than changes in the amount of state
aid to cities (59.2%) and employee pension costs (58.5% ).

22 Jd. at 7.

*° U.S. Department of Commerce, City Government Finances
1989-90, at 1 (summary).

4 Id.

12

energy recovery. As described below, these two objectives
have been articulated by Congress in its enactment of
RCRA in 1976, as well as in subsequent amendments to
RCRA in 1980 and 1984.

A. Regulation of MSW Resource Recovery Is Separate
from the Regulation of Hazardous Wastes Under
Subtitle C of RCRA

In enacting RCRA in 1976,” Congress unambiguously
separated the handling of MSW from the scheme for man-
aging hazardous wastes established under Subtitle C of
RCRA. See S. Rep. No. 988, 94th Cong., 2d Sess. 15-16
(1976) (stating that the hazardous waste permit program
is “not a general regulatory program of municipal or pri-
vate sanitary landfill operations . . . [and] is not to be used
. . . fo extend control over general municipal wastes” )
(emphasis added).

Expressing concern over the increasing scarcity of land
available to metropolitan areas for landfilling of MSW,
Congress further concluded that resource recovery facili-
ties should be promoted as an alternative to landfilling
and as an independent source of energy. H.R. Rep. No.
1491, 94th Cong., 2d Sess. 3 (1976), reprinted in 1976
U.S.C.C.A.N. 6238, 6240. See also Section 1002(b)(8)
and (d) of RCRA, 42 U.S.C. § 6901(b)(8) and (d).
To facilitate the development of MSW resource recovery,
Congress authorized technical as well as research and
development aid to localities developing resource recovery
facilities under Subtitles B and D of RCRA. See Sections
2003 and 4008 of RCRA, 42 U.S.C. §§ 6913, 6948.
Also, Congress authorized EPA to promulgate rules and
guidelines to assist states in implementing resource recov-
ery plans, and to specifically consider appropriate types
of resource recovery facilities for a variety of state and

** Pub. L. No. 94-580, 90 Stat. 2795 (1976) (codified as amended
at 42 U.S.C. §§ 6901-6992k).

13

municipal situations. See Section 4002(c)(10) of RCRA,
42 U.S.C. § 6942(¢c) (10).

Congress’ intention to promote the incineration of
MSW to produce energy as a primary means of resource
recovery is reflected throughout the legislative history of
RCRA’s enactment. For example, House Report 149]
explains that Section 4003 of RCRA, 42 US.C. © 6943,
allows state and local governments the flexibility needed
to develop alternative disposal systems by “requirfing|
that the discarded materials be utilized by a resource
recovery facility for the recovery of energy . . . or that
such discarded materials be disposed of . . . by [an]
environmentally sound method of disposal, including in
cineration that does not conflict with the Clean Air Act.”
H.R. Rep. No. 1491, at 78-79 (emphasis added ).”

Four years after the passage of RCRA, Congress re-
aflirmed its objective of promoting the development of
resource recovery facilities by enacting Section 32 of the
Solid Waste Disposal Act Amendments of 1980, Pub. L.
No, 96-482, 94 Stat. 2334 (hereinafter “1980 RCRA
Amendments”). Section 32 of the 1980 RCRA Amend-
ments, codified at various parts of Subtitle D of RCRA,
amended the statute in order to improve and augment
federal programs for energy and resource recovery assist-
ance to states and municipalities. Section 32 authorized
the EPA to provide grants to states and municipalities
in order to facilitate waste-to-energy feasibility and de-
velopmental planning, and to provide technical assistance

** See also H.R. Rep. No. 1491, at 88-89, reprinted in 1976
U.S.C.C_A.N. 6324 (detailing the composition of the MSW «ream.
and comparing the energy yields from incineration of MSW and
coal in terms of the British Therma! Unit value per pound each
contain, as well as their respective ash content equivalents . 122
Cong. Rec. H1147, H1153 (Sept. 27, 1976) (statement of Rep
Myers) (RCRA represents a “major congressional commitment”
to recapturing the discarding of “millions of tons of paper. va'uable
metals, glass, and other waste materials which could he reused or
burned for their energy value.”) (emphasis added.

14

in order to remove impediments to the development of
energy recovery.

Thus, the 1976 and 1980 statutes demonstrate Con
gress’ intent to regulate MSW separately from hazardous
wastes. These statutes and their legislative history alse
show that a primary objective of Congress was to pro
mote the development of resource recovery facilities, in
cluding facilities which recovered energy from the icine
ation of MSW,

i. The Household Waste Exclusion Expressly Ex-
empts All Aspects of MSW Management from
RCRA‘’s Hazardous Waste Regulatory Program

Consistent with the resource recovery policies and MSW
regulatory scheme embodied by Congress in RCRA, EPA
promulgated the household waste exclusion rule in 1980.
See 45 Fed. Reg. 33,084, 33,120 (May 19, 1980), and
see App., infra. Responding in the regulation’s preamble
io comments suggesting that portions of the household
waste stream should be regulated as hazardous wastes be
cause they might include solvents, insecticides, and paints
purchased at grocery stores, EPA pointed to Congress’ in-
tent to exclude the entire household waste stream from
regulation as a hazardous waste. Although EPA acknowl.
edged that hazardous constituents may be included in
household wastes, the agency nonetheless concluded that
Congress’ intent was best served by excluding the entire
waste stream from Subtitle C regulations:

The Senate language makes it clear that house
hold waste does not lose the exclusion simply be-
cause it has been collected. Since 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,

45 Fed. Reg. at 33,099 (emphasis added). Hence, the
entire category of household waste, including ash residue

15

remaining after treatment, was explicitly exempted from
regulation as a hazardous waste. The rationale for this
exemption was not based on the content of household
waste, but rather on the express congressional policy of
exempting the entire household waste stream from the
hazardous waste regulations regardless of whether it could
he classified as a hazardous waste on account of the
characteristics of its constituents. See id. at 33,097.

EPA knew when it promulgated the regulation that a
small amount of hazardous waste would be included in
the household waste stream. However, neither Congress
nor EPA intended to omit any particular phase in the
management of the MSW waste stream from the house
hold waste exclusion. In particular, by describing incin
erator ash as the residue left after “treatment” of the
waste stream, and by including the ash within the discus
sion of the waste stream’s overall management, EPA
unambiguously exempted the ash from regulation as a
hazardous waste. Thus, EPA excluded the entire house
hold waste stream “in all phases of its management” from
RCRA’s hazardous waste regulatory regime, regardless
of whether the treatment residue-ash might meet the legal
definition of “hazardous waste.”

Discussing the hazardous waste regulatory scheme in
the preamble to the regulation, RPA acknowledved that
the system was imperfect.

This system may not work perfectly for every waste
however. /t may overregulate in some instances and
underregulate in others. This is an unavoidable con-
sequence of attempting to develop a national haz-
ardous waste management program which has to
regulate thousands of wastes... .

Id., at 33,088-89 (emphasis added). Viewed in this con-
text, the fact that MSW ash was not regulated as a haz-

ardous waste is not surprising. EPA, in accordance with
the policy choice made by Congress, simply struck a

16

balance in favor of underregulation in order to promote
the important social values of providing local govern-
ments with flexibility in handling their MSW and of
encouraging resource recovery.

When Congress enacted the Hazardous and Solid Waste
Amendments of 1984, Pub. L. No. 98-616, 98 Stat. 3221
(hereinafter “1984 RCRA Amendments”), it took the
unusual step of expressly adopting and clarifying EPA’s
interpretation of legislative intent by enacting the “Clari-
fication of Household Waste Exclusion.” The provi-
sion codified ‘n the statute the household waste exclusion
as promulgated by EPA. It also clarified that the exclu-
sion removed the entire household waste stream from the
Subtitle C hazardous waste regulatory regime, and that
it applied to resource recovery facilities which burned and
derived energy from MSW.

The intent behind the clarification is stated in the Sen-
ate report accompanying the Senate amendments to the
original House bill, and agreed to by the conference com-
mittee.” Recognizing that it was important to encourage
commercially viable resource recovery facilities and to
remove impediments that may hinder their development
and operation, the Senate report indicated that new Sec-
tion 3001(i) clarified Congress’ original intent to include
within the household waste exclusion all the activities of
a resource recovery facility which recovered energy from
the mass burning of household waste and non-hazardous
waste from other sources, as long as the facility took pre-
cautions against accepting hazardous waste from com-
mercial sources.

All waste management activities of such a facility,
including the generation, transportation, treatment,

“7 See Section 223 of the 1984 RCRA Amendments, 98 Stat. 3252
(codified as amended at § 3001(i) of RCRA, 42 U.S.C. § 6921(i)).

“8 See H.R. Conf. Rep. No. 1133, 98th Cong., 2d Sess. 106 (1984),
reprinted in 1984 U.S.C.C.A.N. 5576, 5677.

17

storage and disposal of waste shall be covered by
the exclusion, if the limitations in paragraphs (1 )
and (2) are met. ... If such [limitations] are in
place, a resource recovery facility whose activities
would normally be covered by the household waste
exclusion should not be penalized for the occasional,
—e receipt and burning of hazardous ma-
terial.

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

This unambiguous statement by the Senate that all
MSW waste management activities by a resource recovery
facility are covered by the exclusion confirms that EPA cor-
rectly reflected Congress’ intent when it first promulgated
the household waste exclusion rule. This Court has ruled
that an administrative agency’s interpretation of congres-
sional intent is entitled to great weight when Congress
is aware of the agency’s interpretation but fails to revise
or repeal the interpretation in subsequent legislation. See
Young v. Community Nutrition Institute, 476 U.S. 974,
983 (1986); NLRB vy. Bell Aerospace Co., 416 U.S. 267,
275 (1974); Zuber v. Allen, 396 U.S. 168, 192-3
(1964); Massachusetts Mutual Life Ins. Co. v. United
States, 288 U.S. 269, 273 (1933). Therefore, EPA’s
1980 household waste exclusion rule, which expressly
covered treatment residue, was confirmed by the 1984
RCRA Amendments.”

2° The Seventh Circuit below, in both of its opinions, concluded
that EPA's interpretation of the household waste exclusion was
entitled to no judicial deference due to the Agency's sometimes
conflicting pronouncements on the exclusion’s meaning. See 985
F.2d at 304; 948 F.2d at 350.

Judge Ripple, dissenting from the decision on remand, noted his
disagreement with the panel’s refusal to extend any deference to
EPA's September 18, 1992 policy memorandum, which stated the
Agency's position that Section 3001(i) of RCRA exempts MSW
incinerator ash from regulation as a hazardous waste. As Judge
Ripple cogently explained, EPA's recent action to clarify the house-

18

By focusing on whether “management” and “genera-
tion” are coextensive terms, the Seventh Circuit missed
what is really at issue in interpreting the household waste
exclusion: the congressional intent that this particular
waste stream in all phases of its management, which in-
cludes treatment by incineration and disposal of the ash
residue resulting from such treatment, be excluded from
the regulatory scheme under Subtitle C of RCRA. In-
stead of placing the statute within the context of the
underlying regulatory and statutory policies, the Seventh
Circuit seized upon the absence of the word “generation”
from the language of Section 3001(i) to support an inter-
pretation which contradicts, and defeats the purpose of,
the statute itself.

hold waste exclusion was a responsible attempt to resolve a major
environmental policy question in a situation where two courts of
appeals had reached diametrically opposed decisions on a question
of statutory interpretation. 985 F.2d at 304-05. Despite the fact
that EPA offered different interpretations of the statute in the
past, the Agency’s current position, which is both well-reasoned and
reasonable given the language of the statute, is entitled to judicial
deference under this Court’s decision in Chevron USA, Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
Indeed, Chevron itself was a case where EPA's interpretation of
the statute in question had changed over time; nonetheless, this
Court decided that it was appropriate to give deference to EPA's
final decision as to the correct interpretation of the statute. See
467 U.S. at 857-58.
The Court’s rationale in Chevron could not be more apropos to

this case:

[T}he Administrator’s interpretation represents a reasonable

accommodation of manifestly competing interests and is en-

titled to deference: the regulatory scheme is technical and

complex, the agency considered the matter in a detailed and

reasoned fashion, and the decision involves reconciling conflict-

ing policies.
467 U.S. at 865 (citations omitted).

Accordingly, the Court should grant certiorari to correct the

Seventh Circuit’s failure to extend any deference whatsoever to
EPA’s policy statement as it was required to do under Chevron.

19

The Seventh Circuit’s focus on the absence of the
word “generation” in Section 3001(i) is misplaced. First,
“generation” is expressly included within the scope of the
exemption in the Senate report’s discussion of Section
3001(i1) which was agreed to by the conference com-
mittee. S. Rep. No. 284, 98th Cong., Ist Sess. 61 (1983).
Second, the absence of the word “generation” in Section
3001(i) is not even relevant to the question of whether
the exemption extends to MSW ash.” In producing ash,
a resource recovery facility is not “generating” a new
waste. Rather, it is treating pre-existing municipal solid
waste to produce what EPA properly described as a
“treatment residue” in the preamble to the 1980 house-
hold waste exclusion rule, and is “disposing” of that res-
idue in a sanitary landfill. As EPA noted in its policy
memorandum,

when a resource recovery facility receives or stores
a non-hazardous solid waste . . . the burning of
such waste generally is regarded as a type of treat-
ment under RCRA.
EPA Memorandum, Petition for Certiorari at App. 43a.
Because Section 3001(i) expressly includes “treatment”
and “disposal” within the scope of the exemption, the
handling of the ash as a treatment residue also falls within
the exemption.”

The Seventh Circuit's interpretation strips the statute
of meaning by making the exemption no longer useful

* Under section 1004(27) of RCRA, 42 U.S.C. § 6903(27), a
material becomes a “solid waste” at the time it is first discarded.
See American Mining Congress v. EPA, 824 F.2d 1177 (D.C. Cir.
1987). Therefore, a “solid waste” is generated whenever a person
or business puts its garbage out for pickup by a waste hauler be-
fore the garbage arrives at the resource recovery facility.

31 See Section 1004(34) of RCRA, 42 U.S.C. § 6903(34), which
defines the term “treatment” when used in connection with a haz-
ardous waste, to mean “any method, technique or process .. .
designed to change the physical, chemical, or biological character
or composition” of the waste.

20

for the purpose it was intended to promote. By creating
an economic disincentive to resource recovery, the Court
of Appeals’ decision will in effect discourage the build-
ing of new resource recovery facilities which incinerate
MSW as a means of energy recovery, and dissuade local
governments from using existing facilities. The decision
undermines Congress’ intent in enacting the exclusion
clarification, as well as Congress’ underlying objectives
with respect to the handling of MSW throughout the his-
tory of the RCRA legislation.

CONCLUSION

For the reasons stated herein and in the Petition for
a Writ of Certiorari, the amicus curiae respectfully urges
the Court to grant certiorari.

Respectfully submitted,

DAVID R. BERz *
DAVID B. HirpD
FRANK PANOPOULOS
WEIL, GOTSHAL & MANGES
1615 L Street, N.W.
Washington, D.C. 20036
(202) 682-7000
* Counsel of Record

April 30th, 1993 for the Amicus Curiae

APPENDIX

1. Section 3001(i) of the Resource Conservation and
Recovery Act, 42 U.S.C. § 6921(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 hazardous wastes for the purposes of regulation
under this subchapter, if—

(1) such facility—
(A) receives and burns only

(i) household waste (from single and multi-
ple dwellings, hotels, motels, and other residen-
tial sources),

(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 estab-
lished contractual requirements or other appropriate
notification or inspection procedures to assure that
hazardous wastes are not received at or burned in

such facility.

2. As originally promulgated, 45 Fed. Reg. 33,084,
33,120 (May 19, 1980) (codified as amended at 40
C.F.R. § 261.4(b)(1)), the Household Waste Exclusion

stated:

(b) Solid wastes which are not hazardous wastes.
The following solid wastes are not hazardous wastes:

2a

(1) Household waste, including household waste
that has been collected, transported, stored, treated,
disposed, recovered (e.g., refuse-derived fuel) or re-
used. “Household waste” means any waste material
(including garbage, trash, and sanitary wastes in
septic tanks) derived from households—{including
single and multiple residences, hotels and motels).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0395%3A04. Public record. Not legal advice.