Amicus Curiae Brief — Chicago v. Environmental Defense Fund

No. 92-1639 | ore OF THE curen |

ences

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

THE CITY OF CHICAGO, et al.,

Petitioners,

V

ENVIRONMENTAL DEFENSE FUND, et al.,

Respondents

Petition for a Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

BRIEF OF THE CITY OF SPOKANE, WASHINGTON,

SPOKANE COUNTY, WASHINGTON,

SKAGIT COUNTY, WASHINGTON;

CITY OF TACOMA, WASHINGTON; MARION COUNTY,

OREGON; RECOMP OF WASHINGTON, AND REGIONAL

DISPOSAL COMPANY AS AMICI CURIAE IN SUPPORT

OF PETITIONERS

Craig S. Trueblood*

Robert B. Mitchell

Brian K. Knox

PRESTON THORGRIMSON

SHIDLER GATES & ELLIS

1400 Seafirst Financial Center

W. 601 Riverside Ave.

Spokane, Washington 99201

(509) 624-2100

Attorneys for Amici Curiae

*Counscel of Record

i

Table Of Contents

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Table Of Authorities

Cases:

Citizens for Clean Air v. a 114 Wash 2d

20, 785 P.2d 447 (1990) Sadesinedidbdiesiabintieditnienhaaiemaeaniaaieil 2

Environmental Defense Fund, Inc. v. City of Chicago, 727

F. Supp. 419 (N_D Ill. 1989), rev'd, 948 F.2d 345

(7th Cir. 1991), cert. granted, decision vacated

and remanded, \\3 S. Ct. 486 (1992), aff'd on

remand, 985 F.2d 303 (7th Cir. 1993). V4

Environmental Defense Fund, Inc v. Wheelabrator

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

1989), affirmed, 93\ F.2d 211 (2d Cir), cert

ee Te Yee 14

Statutes and Regulations

Federal

0 EEE LE 2

LET MATT Ee eS 7

MEE ess SNe 7

40 CFR § 261.24(1992).... viatieaeiiuaiaiesecasaeiciis een

42 U.S.C. § 6901(a)(4) (1988)... ES 12

42 U.S.C. § 6901(c) and (d) (1988). ccc eeeeeennennneeeee 9

i ee 14

in

I ON a ninsctininicnitteiatistias eR ere eee 6

I i vsiccnnictsnssestvnicissininsctttiacidincleaticeteoe eee 7

I BI iiss = 7

I iti ee 9

42 U.S.C. § 6942(c)(10) and (11) (1988) oo cccccccceeeeeeesenneae 13

42 U.S.C. § 6943(a) (V9BB) oo cccccccccccccccccccssnnsnnnnnnnnvanenevesne aelcsienoenaas 14

asain 13

42 U.S.C. § 6943(d) (1988) coco cccssssssesesevesveneenenneenenneensensen 13

ET ee 14

EL TTT 13

EE: NS LT TS, 4

42 U.S.C. § 9605(a)(8) (1988) oo ccccccccccccccssssssssossnsnnnnnansnnssesusneennnneneeneeee 2

ae 13

42 U.S.C. §6903(5) (1988). EEE a ee eee ee 6

Re ERE 8 ee Ae 14

oe BA rae Sa 14

42 U.S.C. 6947(a) (V9BB) oo ocecccccccccccscscsssssonsnnnes nnssessusesnenenneeeeeesenenneenee 14

42 U S.C. 6947(b) (1988). Sladen 13

43 Fed. Reg. 5566 (Feb. 9, 1978). eeeseeseeeteeeneenenenennee

43 Fed. Reg $8969 (Dec. 18, 1978) oo cece 7

IV

45 Fed. Reg. 3309 (May 19, 1980). 12

49 Fed. Reg. 40,320 (October 15, 1984). 2

51 Fed. Reg. 21,054 (June 10, 1986) 2

56 Fed. Reg. 50978 (October 9, 1991) eee I

State

25 Pa. Code § 75.37(1991).. Secu pane 15

Code Me. R. ch. 403 (1990) tet 1S

Conn. Agencies Regs. §§ 22a-209-1, -8,-14(1990). 15

Fla. Admin. Code ch. 17-702 (1992) 0000 cooocoosseereessessesseeeeseeeeee 15

Fla. Stat. Ann. § 403.7045 (West Supp. 1992). WS

Mass. Regs. Code title 310, §§ 19.119, 131 (1992). 15

Mich. Comp. Laws §§ 299 432a- 432b(1991).. 15

N.H. Code Admin. R. Dept. Env. Serv. Part Env. Wm

SN Re ESE RSS 8: the PU a 15

N.Y. Comp. Codes R. Regs. title 6, §§ 360-2.14, -3.5

eta ese We) 2 ee ek eee 15

Wash. Admin. Code § 173-306-200 (1990). 15

Wash. Admin. Code §§ 173-306-350, -450(1990). IS

Wash. Admin. Code §173-306-470 (1990).

Wash. Admin. Code 173-306 - 440(1990), 7

Wash. Admin. Code ch. 173-304 - 460(1990). 7

v

a a I icra cescrraeteniesbessaahienmnanembinnennetentn 15

Wash. Rev. Code § 70.95.010(9) (1989)... cccecccceceeteeteneeeeeneennees 3

casas cceietclieteremmeiidcentcliion 13

ei aliiddncleeetinnannl 15

i cia put 2

S. Rep. No. 988, 94th Cong., 2d Sess. 16 (1976) 0000 oooeseeee 7

Penodicals and Reports:

1984 Spokane County Comprehensive Solid Waste

i acacia inmmnnianenen 2

1992 Spokane County Comprehensive Solid Waste

I siseuniicnsitenemnicannadinies 3

Characierization of Municipal Combustion Ash, Ash

Extracts and Leachates (March 1990) (EPA/530-

ALES = Sa de 7

Characterization of MWC Ashes and Leachates from

MSW Landfills, Monofills and Co-Disposal Sites

EE 7

Final Municipal Waste Combustion Ash and Leachate

Characterization, Woodburn, Oregon (1989) 0000000000000... seein 7

Formation, Characterization, Treatment and Disposal of

Leachate from MSW Landfills (August 1987)

(Wisconsin Department of Natural Resources) 000... 7

Municipal Solid Waste Composition and the Behavior of

Metals in Incinerator Ashes (Feb. 1988)... 7

Municipal Waste Combustion Study: Report to Congress,

p. 26, (June 1987) (EPA/S30-SW-87-021)...0........... sasinmiatiniadiadiad 10

Water Quality Management Plan to Preserve the Quality

of the Spokane-Rathdrum Aquifer (1979) 000000000000 oooooceceeveeee 2

The City and County of Spokane, Washington, the City

of Tacoma, Washington, Skagit County, Washington, Marion

County, Oregon, Regional Disposal Company, and Recomp of

Washington respectfully submit this brief as amici curiae in

support of the petition of the City of Chicago for a writ of

corterass to Che United States Court of Agpenis for the Seventh

Circuit.

INTERESTS OF AMICI

The United States faces a waste disposal crisis. In

contrast to landfills, space for which is fast disappearing,

incineration recovers energy from and reduces the volume of

municipal trash. These benefits, among others, make resource

recovery a key weapon in the war on waste. The decision of the

Court of Appeals, however, threatens to foreclose resource

recovery and to punish every private and public entity that

accepted Congress's invitation to exploit its benefits.

For the City and County of Spokane, Washington,

resource recovery was a response not only to a waste disposal

crisis, but also to a drinking water crisis. The citizens of the City

of Spokane and Spokane County (collectively "Spokane") are

blessed with a priceless resource. the Spokane Valley-Rathdrum

Prairie Aquifer. The aquifer is the federally designated sole

source of drinking water for over 500,000 people. 43 Fed. Reg.

5566 (Feb. 9, 1978). Yet it is also a fragile resource, subject to

pollution by landfills Landfills above the aquifer have been a

concern for many years.

Contamination of the aquifer from solid waste landfills

was first noted in 1979 when the Spokane County Engineer's

The parties’ letters of consent, pursuant to Rule 36 of the Rules of

this Court, have been filed with the Clerk

office issued its Water Quality Management Plan to Preserve

the Quality of the Spokane-Rathdrum Aquifer under Section 208

of the Federal Water Pollution Control Act, 33 U.S.C. § 1288

(1988). The Water Quality Management Plan recommended that

resource recovery, recycling, and innovative disposal methods be

considered as alternatives to landfills. In 1984 Spokane's

Northside Landfill was placed on the National Priorities List

(NPL) of waste cleanup sites, commonly referred to as

"Superfund sites." 49 Fed Reg. 40,320 (October 15, 1984).

Spokane's landfills at Mica, Greenacres and Colbert were also

added to the NPL. 5i Fed. Reg. 21,054 (June 10, 1986).2 The

Mica, Greenacres and Colbert landfills are now closed, and all

but a few acres of the Northside Landfill are closed as well.

In response to this dual crisis of landfill capacity and

drinking water supply, Spokane began a regional public planning

process. The first step in the planning process was to consider

alternatives to solid waste landfills. In 1981 Spokane began

analyzing resource recovery and recycling. Three years later it

adopted the /984 Spokane County Comprehensive Solid Waste

Management Plan Update ("1984 Plan"). The 1984 Plan

includes specific elements for recycling, waste reduction and

resource recovery, garbage landfills are only a last resort for

Spokane. The Washington Department of Ecology ("Ecology")

approved the 1984 Plan, and the Washington Supreme Court

held it was consistent with the Washington Solid Waste

Management Act ("SWMA"), Wash. Rev. Code ch. 70.95

(1989). Citizens for Clean Air v. City of Spokane, 114 Wash. 2d

20, 785 P.2d 447 (1990).

To mitigate the effects of existing landfills as rapidly as

possible, Spokane aggressively implemented the recycling and

resource recovery elements of the 1984 Plan. Recycling

2 Sites are added to the NPL only if the Environmental Protection

Agency finds that they present a significant risk to public health or the

environment compared to other sites in the nation. See 42 USC.

§ 9605(a)(8) (1988).

programs increased the recycling rate in Spokane County from

5% in 1984 to 31% in 1992.3 To manage the rest of the waste

stream, Spokane issued an environmental impact statement and

selected a site for a waste-to-energy facility ("WTE") in 1986. In

1987 Spokane signed a vendor contract to build and operate the

WTE, a power sales contract for the electricity that the WTE

generates, and a lease for the WTE site. In 1989 Spokane issued

$103 million in bonds and accepted a $60 million grant from

Ecology to design and build the WTE and recycling programs.

In 1990 Spokane signed a long-term contract for ash disposal

away from Spokane's aquifer at amicus Regional Disposal

Company's new state-of-the-art ash monofill in Klickitat County,

Washington.

Amici Skagit County, Marion County and Tacoma all

faced solid waste disposal challenges similar to Spokane's. They

planned long-term, integrated strategies and opted for recycling

and resource recovery as cost-effective and in the best interests

of their local communities. Whatcom County, Washington,

under the planning requirements of SWMA, elected to use

private incineration and ash landfil! facilities owned and operated

by amicus Recomp of Washington ("Recomp") in Whatcom

County. Amicus Regional Disposal owns and operates an ash

landfill in Klickitat County, Washington, that serves Spokane and

could become an ash disposal facility for any new or existing

resource recovery facilities in the Pacific Northwest.

3 Spokane's long-range goal 1s to recycle 50% by 1995, in accordance

with the goal set by the Washington Legislature. Wash. Rev. Code §

70.95.010(9) (1992). See also Spokane County Comprehensive Solid Waste

Management Plan Update, p. 82 (January 1992).

SUMMARY OF ARGUMENT*

Congress provided a comprehensive national framework

for waste management in the Resource Conservation Recovery

Act, 42 U.S.C. §§ 6901 - 6992k ("RCRA"). RCRA establishes

minimum federal requirements that are implemented at the state

and local level. State and local government may supplement

RCRA's minimum requirements with more stringent standards.

At the heart of RCRA is a distinction between wastes

that are "hazardous" and wastes that are not. See 42 U.S.C.

§ 6921 (1988). "Hazardous" wastes are a small, distinct subset

of "solid" wastes. Hazardous wastes are subject to very stringent

minimum standards under Subtitle C of RCRA. See 42 U.S.C.

§§ 6921 - 6939b (1988). Subtitle C standards detail all phases

of hazardous waste management, from the type-size on 55-gallon

drum labels to the design standards for large regional landfills.

Solid wastes are subject to an equally comprehensive but less

stringent set of minimum standards under Subtitle D of RCRA.

See 42 U.S.C. §§ 6941 - 6949a (1988).

Congress's decision to regulate hazardous and solid

wastes separately rests on the sound principle that hazardous

wastes pose the greatest risk to public health and should be

regulated more stringently than other wastes. Congress also

recognized that applying Subtitle C standards broadly could

discourage beneficial activities, and that effective implementation

of Subtitle C requires focus on the relatively small number of

4 Amici curiae agree with petitioners’ arguments that the Court should

grant review because the Second and Seventh Circuits have issued conflicting

rulings, because the Seventh Circuit's decision contravenes RCRA's language

and Congress's intent, and because the question presented calls for judicial

resolution. The thrust of this brief is different: It calls attention to the

uncertainty created in the Pacific Northwest by the Seventh Circuit's decision

and shows how that decision undercuts fundamental statutory policies in

RCRA.

industries that generate the largest amounts of hazardous waste.

Thus, Congress authorized exclusions to its definition of

hazardous waste and entrusted the states with the primary

responsibility for regulating the remaining waste stream.

The Court of Appeals’ decision in this case> ignores these

key policies. The Seventh Circuit's interpretation of RCRA

would subject local solid waste management to stringent Subtitle

C standards. If adopted in the Ninth Circuit, the court's

interpretation would require Pacific Northwest cities and

counties implementing resource recovery and recycling programs

to amend their waste management plans and to even consider

abandoning existing public and private waste management

facilities. Cities and counties would be required in the mid-

1990s to start yet another decade-long effort to address the solid

waste crisis, but with less time and even fewer options than were

available in the mid-1980s.

The Court of Appeals’ decision also threatens to disrupt

existing contractual arrangements between the public and private

sectors. Long-term contracts have been signed based on

predictable, long-term operating costs. Hundreds of millions of

dollars worth of municipal bonds have been issued and

repayment terms negotiated based upon predictable, long-term

ash disposal fees. An immediate and unexpected 600% increase

in landfill costs could jeopardize the ability of government to

repay these bonds. This in tum could ruin municipal bond

ratings and jeopardize financing for roads, buildings, bridges,

5 The Court of Appeals initially decided this case in 1991,

Environmental Def. Fund v. City of Chicago, 948 F.2d 345 (7th Cir. 1991).

The Court then granted certiorari, vacated the decision and remanded to the

Court of Appeals for reconsideration in light of the memorandum of the

Admunistrator of the Environmental Protection Agency (Sept. 18, 1992)

captioned Exemption for Municipal Waste Combustion Ash from Hazardous

Waste Regulation Under RCRA Section 3001(i). 113 S. Ct. 486 (1992).

Unpersuaded by the Administrator's memorandum, the Court of Appeals

affirmed its previous decision on remand. 985 F.2d 303 (7th Cir. 1993).

sewers, waste water treatment plants, landfill closures, and

public transit.

Such costs might be tolerable if they resulted in

significant public benefit. Imposing Subtitle C standards on ash,

however, will not provide any additional protection for the public.

In Oregon and Washington, ash and other processed solid wastes

are managed under specifically tailored standards that are at least

as stringent as EPA's newest solid waste landfill standards. In a

landfill environment, ash is less troublesome than unprocessed

garbage. Making ash management subject to Subtitle C will not

protect the public or help solve the nation's solid waste crisis, but

only impose Respondents’ waste management agenda on state

and local government.

ARGUMENT

1. Ash Poses Less Risk to the Public Than Municipal Solid

Waste.

Congress provides different levels of regulation under

RCRA, depending on the degree of risk to the public from

improper management of different kinds of waste. Hazardous

waste can "cause or significantly contribute to an increase in

mortality or an increase in serious illness" and can “pose a

substantial present or potential hazard to human health or the

environment." 42 U.S.C. § 6903(5) (1988). Solid waste, on the

other hand, is "any garbage, refuse, sludge .. . and any other

discarded material," regardless of the threat posed to the public

or environment. 42 U.S.C. § 6903(27) (1988).

Both municipal solid waste ("MSW")? and ash from its

incineration have been tested to determine potential public health

6 In October 1991 EPA substantially upgraded its Solid Waste

Disposal Facility Criteria. 40 C.F.R. pts. 257 and 258 (1992).

concerns. Public agencies and private companies have

extensively tested leachate® from ash and MSW for both

research and compliance purposes.? The U.S. Environmental

Protection Agency's "Toxic Characteristic Leaching Procedure"

("TCLP"), which is used to determine if a solid waste is

"hazardous," mimics leachate generation in a landfill. See

40 C.F.R. § 261.24 (1992). TCLP tests on ash and ash landfill

leachate confirm that, compared to MSW landfill leachate,

leachate from ash is consistently less contaminated. !0

As these tests demonstrate, ash stored in a landfill

environment presents less risk of ground water pollution than

MSW. It is undisputed that MSW is not regulated as a

"hazardous" waste under Subtitle C of RCRA.!! Congress

7 "Municipal solid waste” refers to waste from households, businesses

and institutions that is excluded from the definition of “hazardous” in RCRA

and EPA regulations. See footnote 11, infra

8 "Leachate" refers to liquids such as water that pass through a waste

material and collect contamination from the waste Leachate from a landfill

can migrate and pollute ground water unless collected and properly treated

and disposed. A system of landfill liners and collection pipes serves this

purpose. See, e.g.,40 C.F.R. Pt. 258 (1992), Wash. Admin. Code 173-304-

460 (1990), and Special Incinerator Ash Management Standards, Wash

Admin. Code 173-306-440 (1990)

9 EPA, Characterization of Municipal Combustion Ash, Ash Extracts

and Leachates (March 1990) (EPA/S30-SW-90-29A), NUS Corp., Final

Municipal Waste Combustion Ash and Leachate Characterization,

Woodburn, Oregon (1989), Ujihara, Managing Ash From Municipal Waste

Incineration (Nov. 1989), Clapp, Municipal Solid Waste Composition and

the Behavior of Metals in Incinerator Ashes (Feb. 1988), McGinley and

Kmet, Formation, Characterization, Treatment and Disposal of Leachate

from MSW Landfills (August 1987) (Wisconsin Department of Natural

Resources).

10 NUS Corp., Characterization of Municipal Waste Conbustion

Ashes and Leachates from MSW Landfills, Monofills and Co-Disposal Sites

(1987) (EPA/S30-SW-87-028F)

concluded that MSW can be safely regulated under Subtitle D as

a solid waste. The Court of Appeals' decision imposing

Subtitle C standards on ash management is perverse. Congress

did not intend Subtitle C to apply to waste that poses less risk to

public health than MSW.

2. Applying Subtitle C Standards to Ash Discourages

Beneficial Waste Management Options.

The Court of Appeals’ interpretation of RCRA threatens

the viability of both of the key alternatives to MSW landfills:

resource recovery and material separation. RCRA, in contrast,

reflects a national policy that encourages resource recovery and

recycling. Congress found:

[MlJillions of tons of recoverable material which

could be used are needlessly buried each

year, .. . [and] methods are available to separate

usable materials from solid waste.

~* *

[SJolid waste represents a potential source of

solid fuel, oil or gas that can be converted into

II Congress clearly intended that "general municipal wastes" not be

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

See also 42 U.S.C. § 6941 (1988). "Household" waste, regardless of its

content or quantity, has been excluded from Subtitle C since RCRA's

inception. 43 Fed. Reg. 58969 (Dec. 18, 1978) (promulgating 40 C.F R.

§ 261.4(6)(1)). In 1984 Congress provided a "clarification of household

hazardous waste exclusion” in the section of RCRA that is the focus of this

litigation, i.e., 42 U.S.C. § 6921(i) (1988) (herein "RCRA Section 3001(i)").

Small quantities of waste from businesses and institutions, regardless of

content, have also been excluded from Subtitle C since RCRA's inception.

43 FR 58969 (Dec. 18, 1978), 40 C.F.R. § 261.5 (1992). Together, these

exclusions allow local government to manage MSW outside the confines of

Subtitle C.

energy, ... [and] technology exists to produce

usable energy from solid waste.

42 U.S.C. § 6901(c) and (d) (1988). See also id § 6941a(1) -

(3).

Imposing Subtitle C standards would dramatically impact

existing resource recovery and ash disposal facilities. For

example, Spokane transports ash to a privately owned off-site

landfill and pays a "tipping fee" to amicus Regional Disposal

Company, the landfill owner. The tipping fee is based in part on

landfill operating costs, which are in turn influenced by the extent

of landfill regulations. Amici Skagit County, Marion County and

Tacoma dispose of ash at publicly owned landfills. These

communities do not pay tipping fees, but instead directly finance

the costs of operating ash landfills. Amicus Recomp owns and

Operates resource recovery and ash disposal facilities in

Whatcom County, Washington, and charges a disposal fee based

on the cost of operating both facilities. Typically, ash disposal

costs represent 20 - 30% of the cost of operating a resource

recovery facility.

The relative costs of operating Subtitle C and Subtitle D

landfills are reflected in the tipping fees charged by these

facilities. The tipping fee for off-site ash disposal in the Pacific

Northwest is approximately $35 - 40 per ton. The operating cost

for on-site ash disposal in the Northwest is approximately $25 -

30 per ton.'2 The cost of disposal at RCRA Subtitle C facilities

in the Pacific Northwest, on the other hand, is approximately

$240-270 per ton. !3

12 The difference between the cost per ton for on-site and off-site ash

disposal is primarily due to the cost of transportation.

13 In the Pacific Northwest, existing Subtitle C landfills are located in

Montana, Utah, Idaho and Oregon. The cost estimate for disposal at these

facilities does not include the cost of transportation.

10

Thus, the Court of Appeals’ decision would impose an

immediate tipping fee increase on existing facilities of at least

600%.'4 Many resource recovery facilities would be forced to

close. All of the existing ash landfills would be forced to close or

bear the additional cost to upgrade to Subtitle C standards, if that

were possible. Solid waste landfills would increase. This would

further exacerbate an already short supply of landfill capacity

and, in areas such as Spokane, accelerate the threat to drinking

water from leaking solid waste landfills. This is hardly consistent

with Congress's expressed policy to encourage energy recovery

from solid waste and minimize solid waste landfills.

The Court of Appeals’ decision could also adversely

affect material separation (i.e. “recycling"). To justify its

interpretation of RCRA, the Court of Appeals relied heavily upon

the fact that incineration changes the physical and chemical

nature of solid waste. !5

[T]he “garbage” that emerges from the

incineration process -- ash -- is fundamentally

different in its chemical and physical composition

from the .. . rubbish that goes in. It does not

14 In 1987 EPA recognized the significant cost of disposing of ash as

hazardous waste’ "If the ash generated by a municipal waste combustion

facility were to be managed as a hazardous waste, the cost of managing that

ash would be expected to increase substantially." EPA, Municipal Waste

Combustion Study: Report to Congress, p. 26 (June 1987) (EPA/S30-SW-

87-021). In 1992, EPA stated that the national average cost of Subtitle C

disposal for ash is ten times the cost of disposal in a Subtitle D landfill.

Memorandum of William K. Reilly, Administrator, Environmental Protection

Agency (Sept. 18, 1992).

15 There 1s no question that ash differs chemically and physically from

solid waste This is a necessary consequence of liberating the energy stored

in garbage to generate electricity or steam. It is also one reason that the

leachate from ash 1s /ess of a threat to ground water than the leachate from

solid waste

follow that the generation of .. . a whole new

substance with the characteristic of a hazardous

waste should be exempt from regulation just

because Congress wanted to spare households

and municipalities from a complicated regulatory

system if they inadvertently handled hazardous

waste.

Environmental Defense Fund, Inc. v. City of Chicago, 948 F.2d

345, 351 (7th Cir. 1991), cert. granted, decision vacated and

remanded, \13 S. Ct. 486 (1992), affd on remand, 985 F 2d

303 (7th Cir. 1993). The Court of Appeals reasoned that

household waste loses its exclusion from Subtitle C once the

chemical and physical nature of the waste changes.

Like incineration, the removal of paints, solvents, oil,

bottles, cans, batteries, plastic, and paper from solid waste

necessarily changes the physical and chemical nature of that

waste. Major new “materials recovery facilities" ("MRFs") are

being built and operated across the country in an effort to recover

valuable materials from the solid waste stream !© Other

communities rely on “source separation," where the generator

(i.e., household or business) separates usable materials from the

solid waste stream.

Material separation saves money and protects the

environment by reducing the amount of material that must be

landfilled. Separated materials such as newspaper and aluminum

cans replace “virgin” materials such as trees and aluminum ore.

This eliminates secondary environmental impacts from

harvesting or extracting virgin materials. In some cases material

separation produces “refuse-derived fuel” ("RDF"). RDF ts used

as fuel at resource recovery facilities and even in existing

16 Amicus Skagit County plans to operate a MRF adjacent to its waste-

to-energy facility.

12

industrial boilers and furnaces in place of or as a supplement to

coal or oil. !7

Under the Court of Appeals’ reasoning, all MSW loses

the benefit of any Subtitle C exclusions if the “chemical and

physical composition” of the waste changes. The court's

rationale leaves no room to distinguish between a change in

physical or chemical composition caused by thermal or

mechanical processes. As a result, the Court of Appeals’

interpretation of RCRA strips the household waste exclusion not

only from resource recovery residue but also from material

separation residue.

Without a Subtitle C exclusion, residues from any

material separation process must be tested under RCRA

Subtitle C and, depending on test results, stringently managed as

"hazardous waste". Suddenly, the costs and regulatory

complexity of managing the waste from MRF, RDF and other

material separation programs, like ash from resource recovery

facilities, become prohibitive The Court of Appeals’

interpretation of RCRA discourages material separation and

resource recovery and is inconsistent with congressional policy.

3. The Court of Appeals’ Interpretation Destroys Local

Planning Efforts.

Historically, cities and counties have shouldered the

responsibility for planning and implementing programs to

manage solid waste. Congress recognized this responsibility in

providing technical and financial assistance to local governments,

while mandating minimum federal standards for waste disposal

facilites. 42 U.S.C. § 6901(a)(4) (1988). Local governments

understand local needs, local resources and local policies. Based

17 The preamble to the onginal Subtitle C regulations recognized that

RDF should fall within the household waste exclusion. 45 Fed. Reg. 3309

(May 19, 1980)

13

in this understanding, they can identify appropriate disposal and

collection systems for their communities and choose either to

implement those systems themselves or to rely upon private

enterpnise.

RCRA emphasizes that resource recovery should be

considered in developing local plans. 42 U.S.C. §§ 6943(a)(2),

6947(b) (1988). RCRA provides that resource recovery should

be considered a viable alternative to landfills. See, eg, 42

U.S.C. § 6902(a)(1) (1988) (federal assistance for planning

resource recovery); § 6942(c)(10) and (11) (1988) (state plans

must consider resource recovery facilities and markets for energy

recovery); § 6943(c) (1988) (federal assistance for studying

feasibility of resource recovery systems); § 6943(d) (1988)

(recycling considered in sizing resource recovery facilities).

In the Pacific Northwest, local governments plan waste

management under state-wide goals and pnorities. Washington's

cities and counties began long-term waste management planning

in the early 1980s. They must update their plans regularly.

Wash. Rev. Code § 70.95.110 (1992). Spokane's ten-year

journey through local planning is outlined at pages | - 3, above.

Spokane's experience illustrates how local conditions and policies

shape local waste management decisions. It points out how

recycling and resource recovery are options badly needed to

address the waste management crisis. Finally, it demonstrates

that planning for integrated waste management requires

substantial resources and that implementing local choices

requires long-term contractual commitments.

Amici Skagit County, Marion County and Tacoma have

made similar journeys. Each community has different policies

and different constraints. Nonetheless, all of them studied and

debated landfilling, recycling and resource recovery at the local

level and then selected and implemented local choices. Amici

committed to resource recovery under the belief that RCRA

Section 3001(i) excluded ash from Subtitle C. Their

14

understanding was based on the language of regulations and

Statutes and on court decisions which had, prior to the Court of

Appeals’ ruling in this case, uniformly so interpreted Section

3001(i). 18

The Court of Appeals' decision removes resource

recovery as a viable alternative for local governments, contrary to

national policy in RCRA. The cost of managing ash from

resource recovery as hazardous waste is simply prohibitive. !?

For communities already implementing resource recovery, the

consequences are potentially disastrous. The results of a decade

of solid waste planning could become useless. Long-term

contracts and financing commitments could be jeopardized.

Hundreds of millions of dollars of capital improvements could

become too costly to maintain’ The Court of Appeals’

interpretation of RCRA destroys local planning.

4 The Court of Appeals' Interpretation Undercuts State

Ash Management Programs

RCRA allows states to develop and administer their own

solid and hazardous waste programs.2° Consistent with RCRA's

18 Environmental Defense Fund, Inc. v. Wheelabrator Technologies,

Inc., 725 F. Supp. 758 (S.D.N_Y. 1989), affirmed, 931 F.2d 211 (2d Cir),

cert. demed, \\2 S.Ct. 453 (1991), Environmental Defense Fund, Inc. v.

City of Chicago, 727 F. Supp. 419 (N_D. Ill. 1989), rev'd, 948 F.2d 345 (7th

Cu. 1991), cert. granted, vacated and remanded, \\3 S. Ct. 486 (1992),

aff'd on remand, 985 F.2d 303 (7th Cir. 1993)

19 As explained at pp. 9 - 11, supra, material separation would also

become cost-prohibitive under the Court of Appeals’ reasoning,

20 By establishing state programs at least as stringent as parallel

federal programs, states may administer the Subtitle C hazardous waste

program, 42 US.C. §§ 6902(a)(7), 6926(b) (1988), obtain federal financial

assistance for Subtitle D solid waste programs, 42 U.S.C. §§ 6943(a) (1988),

6945(c) (1988), and 6947(a) (1988), and administer the federal underground

storage tank regulatory program, 42 USC. § 699 1c (1988).

15

federal framework, several states created detailed regulatory

programs to address management of ash from MSW resource

recovery facilities.

For example, Washington enacted an Incinerator Ash

Residue Act, Wash. Rev. Code ch. 70.138 (1992), early in 1987.

In 1990 the Washington Department of Ecology ("Ecology")

promulgated Special Incinerator Ash Management Standards,

Wash. Admin. Code ch. 173-306 (1990), to implement the Act.

Ash generators in Washington must develop approved ash

management plans and implement measures to minimize ash

volume, maintain its quality, and provide for its safe transport

and disposal. Wash. Admin. Code § 173-306-200 (1990). Ash

must be tested quarterly; Ecology monitors the results. Jd. Ash

may be disposed of only in dedicated ash landfills, called

monofills, that meet detailed standards for siting, performance,

monitoring, and design. Wash. Admin. Code §§ 173-306-350, -

450 (1990). Monofill operators must provide financial security to

assure their facilities’ safe closure. Wash. Admin. Code §173-

306-470 (1990).

Uncertainty regarding the scope of RCRA Section

3001(i) threatens the viability of Washington's ash program.

Although developed specifically to address the characteristics of

ash from MSW resource recovery, Washington's ash program is

not intended to be identical to Subtitle C requirements for

hazardous waste management. For example, Washington's ash

program does not require each shipment of ash to be tracked with

manifest documents in triplicate. Compare Wash. Admin. Code

ch. 173-306 (1990) with 40 C.F.R. § 262.20 (1992). Other states

also have programs specifically designed for ash management

that are not identical to the Subtitle C program?!

21 See, e.g., Mich. Comp. Laws §§ 299.432a - 432b (1991); Fla. Stat

Ann. § 403.7045 (West Supp. 1992), Fla. Admin. Code ch. 17-702 (1992),

Code Me. R. ch. 403 (1990), Mass. Regs. Code title 310, §§ 19.119, .131

(1992), Conn. Agencies Regs. §§ 22a-209-1, -8, -14 (1990), NY. Comp

16

So long as the Seventh Circuit's decision remains in

effect, the status of state ash programs is unclear At worst,

these programs and the resource recovery and ash landfills

designed and built in accordance with their provisions could be

rendered legally obsolete. Supreme Court review is required to

correct the Seventh Circuit's error and to remove the corrosive

uncertainty that ‘his decision has produced throughout the

country.

CONCLUSION

This Court should grant the petition for a wnt of

certiorari.

Respectfully submitted,

PRESTON THORGRIMSON

SHIDLER GATES & ELLIS

LLU

Craig Steven hale

Robert B. Mitchell

Bnan K. Knox

Attorneys for amici curiae

*Counsel of Record

Codes R. Regs. title 6, §§ 360-2.14, -3.5 (1992); N.H. Code Admin. R. Dept.

Env. Serv. Part Env. Wm 2602 (1992); 25 Pa. Code § 75.37 (1991).