Amicus Curiae Brief — Chicago v. Environmental Defense Fund

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No. 92-1639 ‘Eee

IN THE ;

: : Prins ns |.

Supreae Court of the United Staten

OCTOBER TERM, 1992

THE CIty OF CHICAGO, et al.,

‘ Petitioners,

ENVIRONMENTAL DEFENSE FUND, et ai.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

BRIEF AMICI CURIAE OF BROWARD COUNTY, FLORIDA,

CITY OF ALEXANDRIA, VIRGINIA, CITY OF AMES, IOWA,

CITY OF HARRISBURG, PENNSYLVANIA, CITY OF

INDIANAPOLIS, INDIANA, CITY OF TULSA, OKLAHOMA,

COUNTY BOARD OF ARLINGTON, VIRGINIA, DAVIS

COUNTY SOLID WASTE MANAGEMENT AND ENERGY

RECOVERY SPECIAL SERVICE DISTRICT (UTAH), GREATER

DETROIT RESOURCE RECOVERY AUTHORITY, JOINT

BOARD OF OVERSIGHT FOR THE HAMPTON NASA USAF

REFUSE-FIRED STEAM GENERATING FACILITY,

METROPOLITAN GOVERNMENT OF NASHVILLE AND

DAVIDSON COUNTY, TENNESSEE, MINNESOTA RESOURCE

RECOVERY ASSOCIATION, MONTGOMERY COUNTY, OHIO,

NATIONAL INSTITUTE OF MUNICIPAL LAW OFFICERS,

NEW HANOVER COUNTY, NORTH CAROLINA, NORTHEAST

SOLID WASTE COMMITTEE, RESOURCE AUTHORITY IN

SUMNER COUNTY, TENNESSEE, SOLID WASTE AUTHORITY

OF CENTRAL OHIO, SOUTHEASTERN PUBLIC SERVICE

AUTHORITY OF VIRGINIA, ST. CROIX COUNTY, WISCONSIN,

AND YORK COUNTY SOLID WASTE

AND REFUSE AUTHORITY

IN SUPPORT OF PETITIONERS

Scott M. DUBOFF *

ANDREAS H. LESKOVSEK

WINSTON & STRAWN

1400 L Street, N.W.

Washington, D.C. 20005-3502

(202) 371-5704

* Counsel of Record Counsel for Amici Curiae

(Additional Counsel Listed on Inside Cover )

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BENJAMIN L. BROWN

National Institute of

Municipal Law Officers

1000 Connecticut Ave., N.\

Suite 902

Washington, D.C. 20036

Counsel for National Institute o/

Municipal Law Officers

WANDA M. COPLEY

County Attorney

320 Chestnut Street

Room 309

Wilmington, NC 28401

Counsel for New Hanover

County, North Carolina

RUTH ELLEN FITCH

RALPH A. CHILD

Palmer & Dodge

One Beacon Street

Boston, Massachusetts 02108

Counsel for Northeas: Solid

Waste Committee

PETER M. HUBER

Willcox & Savage, P.C.

1800 Nationsbank Center

One Commercial Place

Norfolk, Virginia 23510-2197

Counsel for Southeastern Public

Service Authority of Virginia

Grecory A. TIMMERMAN

Corporation Counsel

St. Croix County Courthouse

911 Fourth Street

Hudson, Wisconsin 54016

Counsel for St. C: ~~ c County,

Wisconsin

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ....... scaleeeinamnienenipedsnabassdeliapies

STATEMENT OF INTEREST OF AMICI 0...

REASONS FOR GRANTING THE WRIT ....... saan

CONCLUSION

Page

20

ii

TABLE OF AUTHORITIES

CASES Page

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

fense Council, Inc., 467 U.S. 837 (1984). 18,19

Crandon v. United States, 494 U.S. 152 (1990). 14

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

cago, 948 F.2d 345 (7th Cir. 1991). vacated, 113

S. Ct. 486 (1992), 985 F.2d 303 (7th Cir. 1993)

Ene 2,14, 17,18

Environmental Defense Fund, Inc. v. Wheelabra-

tor Technologies, Inc., 931 F.2d 211 (2d Cir.

1991), aff’9 725 F. Supp. 758 (S.D.N.Y. 1989),

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

Miles v. Apex Marine Corp., 498 U.S. 19 (1990). 15

Public Interest Research Group of New Jersey,

Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d

64 (3d Cir. 1990), cert. denied, 111 S. Ct. 1018

SRE nee eR ce 9

Rust v. Sullivan, 111 S. Ct. 1759 (1991)... 18

STATUTES AND REGULATIONS

Ee ee ec ee 12

TERE a 9

42 U.S.C. § 6901(b) (1) and (8). ASE 6-7

TTS ESE Sane e 16

ETL a eee ET 3

ES Oe PORE cRree passim

ee 2

42 U.S.C. § 6928(¢).. aisiaashhamaiaatedinbobiaasatuncaeias 9

Ee ee 7,10

I 5

ES ee fe)

Mass. Regs. Code title 310,§ 19.119 aod 18

Mich. Comp. Laws § 299.432(4) and 432a _ 10,18

Pa. Stat. Ann. title 35, § 6018.102(2). ———— 10

Tenn. Stat. Ann. § 68-31-602(b) 10

40 C.F.R. § 241.101(k).. EE ESET oar ey ee ee 3

EERE ER ee Ne er ae ee 18

iii

TABLE OF AUTHORITIES—Continued

LEGISLATIVE AND ADMINISTRATIVE

MATERIALS

S. Rep. No. 284, 98th Cong., 2d Sess. (1983) 15-

H.R. Conf. Rep. No. 1133, 98th Cong., 2d Sess.

STITT csceensnsseeiessinesaedeeendenbisdennsialintaiisdathhibabianebinepniabbminis

45 Fed. Reg. 33084 (May 19,1980)...

50 Fed. Reg. 28702 (July 15,1985)

54 Fed. Reg. 52209 (December 20, 1989) ;

57 Fed. Reg. 54393 (November 18,1992) =>

Requlation of Municipal Solid Waste Incinerators:

Hearings on H.R. 2162 Before the Subcomm. on

Transportation and Hazardous Materials of the

House Comm. on Energy and Commerce, 101st

i Se eseendicemansaioaibent

Resource Conservation and Recovery Act—Over-

sight: Hearings Before the Subcomm. on Haz-

ardous Wastes and Toxic Substances of the Sen-

ate Comm. on Environment and Public Works,

100th Cong., Ist Sess. (1987) ae

Memorandum from William K. Reilly, Adminis-

trator, U.S. EPA, to All Regional Administra-

tors, Subject: Exemption for Municipal Waste

Combustion Ash From Hazardous Waste Regu-

lation Under RCRA Section 3001(i) (Septem-

ber 18, 1992) ................... Re Ee ES AN ES ES

MISCELLANEOUS

Brief for the United States as Amicus Curiae,

City of Chicago v. Environmental Defense

Fund, 113 S. Ct. 486 (1992) (No. 91-1328) (on

petition for a writ of certiorari) =...

Commonwealth of Massachusetts, Department of

Environmental Protection, Toward a System of

Integrated Solid Waste Management/The Com-

monwealth Master Plan (June 1990)...

Goodwin, Richard W., Defending the Character of

Ash, Solid Waste & Power 18 (September /Octo-

STI: SID’ <ssconsesieaduiasshannieadigammednddmadhiaigieadieataimmaadiinods

Page

16, 17

13, 19

19

11-12

18

iv

TABLE OF AUTHORITIES—Continued

Gruber, William, TSD Summary 1993, EI Digest

14 (January 1993)

Kiser, Jonathan V.L., A Comprehensive Re port « on

the Status of Municipal Waste Combustion,

Waste Age 109 (November 1990).

Kiser, Jonathan V.L., Municipal Waste Combus-

tion in North America: 1992 Update, Waste

Age 26 (November 1992) .....

Michigan Department of Natural Resources, Mich-

igan Solid Waste Policy (1988) ..

Municipality of Anchorage, Alaska, Paying for

Federal Environmental Updates: A Looming

Crisis for Cities and Counties (January 1993).

National Solid Wastes Management Association,

1990 Landfill Tipping Fee Survey (1991) ..

Ohio Municipal League, Ohio Metropolitan Area

Cost Report for Environmental Compliance

(September 15, 1992) 0.000000.

Smith, Jeffrey D., Hazardous Waste Landfill Fa-

cility Information, EI Digest 24 (March 1992)

State of Florida, Division of Administrative Hear-

ings, Application for Power Plant Certification

of Lee County Solid Waste Resource Recovery

Facility (No. 90-3942EPP) Final Order Ap-

proving Certification (June 19, 1992) and

Recommended Order (December 9, 1991)

U.S. Dept. of Energy, National Energy Strategy

(Ist ed. 1991/1992)... eianeaiateniaiiagiade

U.S. Environmental Protection Agency, Charac-

terization of Municipal Solid Waste in the

United States: 1992 Update EPA/530-R-92-019

(July 1992) ............... scaeeatenetasianiatlietesiaieess acai 6, 7,

U.S. Environmental Protection Agency, Charac-

terization of Municipal Solid Waste in the

United States: 1990 Update EPA/530-SW-90-

Ie a

U.S. Environmental Protection Agency, The Solid

Waste Dilemma: An Agenda for Action, EPA/

530-SW-89-019 (February 1989)...

Page

12

13

17

1]

11,12

6,7

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-1639

Tue Criry oF CHIcaco, et al.,

7 Petitioners,

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 AMICI CURIAE OF

BROWARD COUNTY, FLORIDA, CITY OF

ALEXANDRIA, VIRGINIA, CITY OF AMES, IOWA,

CITY OF HARRISBURG, PENNSYLVANIA,

CITY OF INDIANAPOLIS, INDIANA, CITY OF TULSA,

OKLAHOMA, COUNTY BOARD OF ARLINGTON,

VIRGINIA, DAVIS COUNTY SOLID WASTE

MANAGEMENT AND ENERGY RECOVERY SPECIAL

SERVICE DISTRICT (UTAH), GREATER DETROIT

RESOURCE RECOVERY AUTHORITY, JOINT BOARD

OF OVERSIGHT FOR THE HAMPTON/NASA/USAF

REFUSE-FIRED STEAM GENERATING FACILITY,

METROPOLITAN GOVERNMENT OF

NASHVILLE AND DAVIDSON COUNTY, TENNESSEE,

MINNESOTA RESOURCE RECOVERY ASSOCIATION,

MONTGOMERY COUNTY, OHIO, NATIONAL

INSTITUTE OF MUNICIPAL LAW OFFICERS,

NEW HANOVER COUNTY, NORTH CAROLINA,

NORTHEAST SOLID WASTE COMMITTEE,

RESOURCE AUTHORITY IN SUMNER COUNTY,

TENNESSEE, SOLID WASTE AUTHORITY OF

CENTRAL OHIO, SOUTHEASTERN PUBLIC SERVICE

AUTHORITY OF VIRGINIA, ST. CROIX COUNTY,

WISCONSIN, AND YORK COUNTY SOLID WASTE

AND REFUSE AUTHORITY

IN SUPPORT OF PETITIONERS

2

This brief amici curiae is submitted in support of the

petition for a writ of certiorari filed by the City of Chi-

cago, et al., seeking review of the January 12, 1993

judgment entered by the United States Court of Appeals

for the seventh Circuit. That judgment, and the Seventh

Circuit’s related opinion, Environmental Defense Fund,

Inc. v. City of Chicago, 985 F.2d 303 (7th Cir. 1993),

were entered following this Court’s November 16, 1992

order vacating the Seventh Circuit’s previous judgment

and remanding this case to the court of appeals. Envi-

ronmental Defense Fund, Inc. v. City of Chicago, 948

F.2d 345 (7th Cir. 1991), vacated, 113 S. Ct. 486

(1992). The Seventh Circuit majority’s opinion on re-

mand, 985 F.2d at 304, readopts the majority’s 1991

opinion, which concluded that ash residue from the oper-

ation of waste-to-energy, resource recovery facilities is

subject to the hazardous waste management standards of

Subtitle C of the Resource Conservation and Recovery

Act (“RCRA”), 42 U.S.C. §§ 6921-6939 (1988) (the

court of appeals’ opinions are reproduced in the Appen-

dix to the petition (“Pet. App.”) at la-2la; Circuit

Judge Ripple dissented in both instances). The Seventh

Circuit’s decision directly conflicts with the decision of

the Second Circuit concerning the identical issue, Envi-

ronmental Defense Fund, Inc. v. Wheelabrator Technolo-

gies, 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), and contradicts the plain meaning and clear

legislative intent of section 3001(i) of RCRA, 42 U.S.C.

$ 6921(i), the principal statutory provision at issue. The

Seventh Circuit’s decision poses a serious obstacle to

sound management of the growing municipal solid waste

stream in the United States, and requires review by this

Court. The parties’ letters of consent concerning this

brief have been filed with the Clerk of the Court.

STATEMENT OF INTEREST OF AMICI

Amici vigorously supported the petition for a writ of

certiorari that the City of Chicago filed in this matter in

3

1992 (Brief Amici Curiae of the City of Ames, Iowa,

et al., No. 91-1328). Amici do so again in 1993.

Amici’s interest is directly linked to the current—and

increasing—national concern regarding solid waste man-

agement. See U.S. Environmental Protection Agency,

The Solid Waste Dilemma: An Agenda for Action, EPA/

530-SW-89-019 (February 1989) (cited below as

“Agenda For Action”). Simply stated, ‘“‘we are generating

more garbage all of the time, and we don’t know what

to do with it.” Jd. at 8. Amici include cities, counties,

and local government agencies who have primary re-

sponsibility for managing this growing solid waste stream.

Meeting that responsibility has required amici and their

constituents to concern themselves with all of the public

health, environmental and economic aspects of managing

the municipal waste stream. That is the context in which

amici have focused on the development of resource re-

covery facilities as a very important solid waste manage-

ment tool.’

In some instances amici both own and operate re-

source recovery facilities. Other amici own resource re-

covery facilities that are operated bh private vendors.

Still others have entered long-term contracts with pri-

vately owned and operated resource recovery facilities.

More specifically, amici include a number of cities and

counties (Alexandria, Virginia; Ames, Iowa; Arlington,

Virginia; Broward County, Florida; Harrisburg, Pennsyl-

vania; Indianapolis, Indiana; Montgomery County, Ohio;

Nashville, Tennessee; New Hanover County, North Caro-

lina; St. Croix County, Wisconsin; and Tulsa, Okla-

homa). Other amici are local government agencies and

special authorities (Davis County Solid Waste Manage-

ment and Energy Recovery Special Service District

1 The term “municipal solid waste” (or “MSW’”’) refers primarily

to residential solid waste, with some contribution of solid (non-

hazardous) waste from commercial, institutional and industrial

sources. 40 C.F.R. § 241.101(k). A “resource recovery facility”

produces energy (steam and electricity) from the combustion of

MSW. See 42 U.S.C. § 6903(24).

7

4

(Utah); Greater Detroit Resource Recovery Authority;

Joint Board of Oversight, Hampton/NASA/USAF

Refuse-Fired Steam Generating Facility (Virginia); Re-

source Authority in Sumner County, Tennessee; Solid

Waste Authority of Central Ohio; Southeastern Public

Service Authority of Virginia; York County Solid Waste

and Refuse Authority (Pennsylvania); and the North-

east Solid Waste Committee (North Andover, Massa-

chusetts ) ).”

Amici also include national and regional organiza-

tions concerned with solid waste management. Amicus

National Institute of Municipal Law Officers (““NIMLO”)

is a non-partisan organization representing more than

1,400 local governments and their attorneys. NIMLO

is dedicated to sound resolution of nationally-important

legal issues affecting municipalities, including waste man-

agement issues. Another of the amici, the Minnesota

Resource Recovery Association, is an association consist-

ing primarily of public entities working with the private

sector in the development, ownership and operation of

resource recovery facilities and other types of waste man-

agement facilities.*

* The Southeastern Public Service Authority of Virginia consists

of the cities of Chesapeake, Franklin, Norfolk, Portsmouth, Suffolk

and Virginia Beach, and the counties of Isle of Wight and South-

hampton. The Northeast Solid Waste Committee is established

under Massachusetts law as a corporate entity performing gov-

ernmental functions concerning waste management on behalf of

the following twenty-three Massachusetts communities: Acton,

Andover, Arlington, Bedford, Belmont, Boxborough, Burlington,

Carlisle, Dracut, Hamilton, Lexington, Lincoln, Manchester, North

Andover, North Reading, Peabody, Tewksbury, Watertown, Wen-

ham, Westford, West Newbury, Wilmington and Winchester.

* The Minnesota Resource Recovery Association represents waste-

to-energy facilities serving the Minnescta counties of Anoka,

Beltrami, Benton, Carver, Cass, Clay, Clearwater, Dodge, Douglas,

Goodhue, Grant, Hennepin, Hubbard, Itasca, Mahnomen, Norman,

Olmsted, Ottertail, Polk, Pope, Ramsey, Sherburne, Stearns, Stevens,

Todd, Traverse, Wadena, Washington and Wilkin, and the Minne-

5

Resource recovery facilities are key components of the

integrated waste management systems that many local

governments throughout the United States are pursuing

(integrated waste management means the complementary

use of several waste management methods—source reduc-

tion, reuse and recycling, waste combustion with energy

recovery and landfilling—to handle waste in an envi-

ronmentally sound and economical manner). Agenda for

Action at 16. Resource recovery facilities use municipal

solid waste as fuel to produce steam and electricity.

These environmentally sound facilities also produce ash

residue as a result of the combustion process, and man-

age the ash as nonhazardous waste consistent with the

requirements of Subtitle D of RCRA, 42 U.S.C. §§ 6941-

6949, and related state laws.

The implications of the court of appeals’ decision that

such ash is instead governed by RCRA’s hazardous waste

management standards are severe. The resource recovery

facilities that amici represent produce thousands of tons

of ash daily and are designed to operate 365 days a year.

On a composite basis the 142 resource recovery facilities

now operating in the United States produce approximately

8.5 million tons of ash annually. See Jonathan V.L. Kiser,

Municipal Waste Combustion in North America: 1992

Update, Waste Age 26, 28 and 34, Figure 2 (November

1992) (cited below as “Combustion in North America’ )

(ash tonnage calculated based on data presented). Aside

from the serious financial implications of managing this

ash as hazardous waste, amici and the hundreds of com-

munities they represent face troublesome enforcement

consequences as well. The decision below undermines

carefully designed solid waste management plans for

amici and many other communities throughout the United

sota cities of Red Wing and Fergus Falls. Other members of the

Association are: Winona and Dakota Counties, Northern States

Power Company, United Power Association, Quadrant Company

and Richards Asphalt.

6

States that have turned to resource recovery as an en-

vironmentally sound strategy for municipal solid waste

management.

REASONS FOR GRANTING THE WRIT

As the United States Environmental Protection Agency

(“EPA”) has noted, there is a “serious and growing solid

waste problem in many American cities.” Agenda for

Action at 8. The volume of municipal solid waste in the

United States continues to increase steadily. Indeed, for

the most recent three-year period for which EPA survey

data are available (1988-90), MSW increased by 9 per-

cent—180 million tons to 195.7 million tons. U.S. Envi-

ronmental Protection Agency, Characterization of Munici-

pal Solid Waste in the United States: 1992 Update, EPA/

530-R-92-019, ES-3 (July 1992) (cited below as “1992

Update”); U.S. Environmental Protection Agency, Char-

acterization of Municipal Solid Waste in the United

States: 1990 Update, EPA/530-SW-90-042, ES-3 (June

1990) (cited below as “1990 Update’). Moreover, EPA

projects an increase to 222 million tons by the year 2000.

1992 Update at ES-3.

Selecting the best strategy for managing this growing

waste stream has changed over time and poses important

policy questions for all levels of government. Although

combustion of MSW had previously been widely used,

combustion declined into the 1970's and early 1980's as

old incinerators were closed down due to increasingly

Stringent air pollution control standards. See 1992 Up-

date at 3-3/3-4. Landfilling of MSW became the primary

management alternative, taking 80 percent or more of the

municipal waste stream. Agenda for Action at 22-23.

A serious shortage of landfill capacity and associated

health and environmental concerns followed. See 1992

Update at 3-4.4

* Congress warned in 1976 that “land is too valuable a national

resource” to be devoted to disposal of most of our solid waste

7

A principal response to these matters has been the

adoption of state and federal laws and policies encourag-

ing development of waste-to-energy, resource recovery

facilities (employing state-of-the-art air pollution control

systems) as part of integrated solid waste management

plans, supra, which also include source reduction, re-

cycling, etc. Although more costly in the short run,

waste combustion with energy recovery is favored over

landfilling, the principal alternative. See 1/990 Update at

4; 1992 Update at 1-4; see also 54 Fed. Reg. 52209,

52245 (December 20, 1989) (“The EPA believes it is

preferable to burn the combustible materials in an MWC

[municipal waste combustor] [rather] than to landfill

them. Not only is landfilling a disfavored waste manage-

ment option (see RCRA section 1002(b)(8)), but it is

sound policy to recover the energy value of the combusti-

bles rather than burying them” [citations omitted]).° In

adopting the Solid Waste Disposal Act Amendments of

1980, Congress expressly recognized the need to encour-

age the use of technology to produce usable energy from

waste, which would reduce our reliance on diminishing

fossil fuel resources and the burden of disposing of in-

creasing volumes of MSW. 42 U.S.C. § 694la.

stream, and that “alternatives to existing methods of land disposal

must be developed”. 42 U.S.C. § 6901(b) (1) and (8).

5 Combustion reduces waste volume or mass by approximately 90

percent. See Jonathan V.L. Kiser, A Comprehensive Report on the

Status of Municipal Waste Combustion, Waste Age 109, 156 (No-

vember 1990). See also Michigan Department of Natural Resources,

Michigan Solid Waste Policy 6 (1988) (although landfilling is still

the least costly waste management option, it is also “the least

desirable option because of the risk of groundwater contamination

and the waste of some valuable materials’); Commonwealth of

Massachusetts, Department of Environmental Protection, Toward a

System of Integrated Solid Waste Management /The Commonwealth

Master Plan 45 (June 1990) (“Preferable to landfilling for the

management of most wastes, combustion offers more effective en-

vironmental control and monitoring systems with less potential for

long-term, irreversible damage to the environment”).

8

The result of these laws and policies has been a signifi-

cant increase since 1985 in the development of resource

recovery facilities by local government. But as a conse-

quence of the court of appeals’ decision, local government

now confronts the specter of RCRA enforcement actions

like the instant case and the overturning of solid waste

management decisions made with painstaking care by

amici and many other communities who face possible

shutdown of resource recovery facilities and cancellation

of new facilities.

1. Turning first to the immediate enforcement impact

of the decision below, there are approximately 142 re-

source recovery facilities presently operating in the United

States (and another 49 under construction or in various

Stages of planning). See Combustion in North America,

at 28, 30 and Table 3. These facilities manage ash residue

subject to RCRA Subtitle D and related state laws as

nonhazardous waste; at no time have these facilities man-

aged ash as hazardous waste pursuant to RCRA Subtitle

C. Although the impact of the decision below would be

most direct in the states that comprise the Seventh Cir-

cuit (if the Court does not grant the instant petition, re-

source recovery facilities in those states would have no

choice but to begin managing resource recovery facility

ash subject to Subtitle C requirements), the Seventh Cir-

Cuit’s decision poses serious uncertainty—and a Hobson's

choice—for essentially all resource recovery facilities

(outside the Second Circuit).

One option (in theory) would be to change the facili-

ties’ method of operation and begin managing ash residue

subject to RCRA Subtitle C. That change in operations

would carry a very steep price, however. As explained

in more detail below, the cost of managing ash residue

as hazardous waste could easily cause current waste man-

agement costs to double or triple, far outstripping the

financial resources of the affected communities, and would

also require dedicating limited hazardous waste landfill

9

capacity to disposal of benign resource recovery facility

ash. See infra pp. 10-14 and note 12.

Another approach (for facilities outside the Seventh

Circuit) would be to continue to manage ash as non-

hazardous waste. But if the instant petition is not granted,

there is serious concern that additional suits identical to

the suit filed below in the Northern District of Illinois

(and the related suit that was filed simultaneously in the

Southern District of New York in the Wheelabrator case,

supra p. 2) will be brought against amici and many

other communities by respondents or similar organiza-

tions. Filed under RCRA’s citizen suit provision, section

7002 of RCRA, 42 U.S.C. § 6972, these suits can im-

pose injunctive relief and civil penalties of up to $25,000

per day of violation. /d.; see also 42 U.S.C. § 6928(g).

The statute of limitations that generally applies in similar

civil penalty actions is five years. See 28 U.S.C. § 2462;

see also Public Interest Research Group of New Jersey,

Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64,

73-76 (3d Cir. 1990), cert. denied, 111 S. Ct. 1018

(1991) (applying 28 U.S.C. § 2462 to citizen suits under

section 505 of the Federal Water Pollution Control Act).

A resource recovery facility produces ash every day that

it operates, and it is apparent that failure to conform to

the Seventh Circuit’s interpretation exposes scores of

communities to considerable enforcement risk and sub-

stantial civil penalty liability. Granting the petition will

eliminate these troubling uncertainties.

2. Aside from these enforcement implications, the de-

cision below will seriously undermine the carefully de-

signed solid waste management plans of many communi-

ties and threaten the financial viability of most, if not all,

resource recovery facilities due to the cost of managing

resource recovery facility ash as hazardous waste. The

economic burden that results from the court of appeals’

interpretation of section 3001(i) cannot be reconciled

with Congress’ intent to encourage resource recovery

facilities. That additional cost burden is, moreover, a

10

very troubling prospect for communities across the United

States who already face serious fiscal problems.

a. As noted earlier, federal and state laws adopted

in response to the growing solid waste dilemma vigor-

ously encourage expanded use of resource recovery facili-

ties and decreased reliance on landfilling of municipal

solid waste. In that connection, section 32(a) of the

Solid Waste Disposal Act Amendments of 1980, 42

U.S.C. § 6941la, recognizes that “the recovery of energy

and materials from municipal waste, and the conserva-

tion of energy and materials contributing 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”. The laws of a

number of states are very similar. For example, section

32(f) of the Michigan Solid Waste Management Act,

Mich. Comp. Laws § 299.432(4), prescribes a statewide

“strategy to encourage resource recovery and establish-

ment of waste-to-energy facilities” with the “goal of re-

ducing land disposal to unusable residuals by the year

2005”. Section 2(b) of the Tennessee Solid Waste Plan-

ning and Recovery Act, Tenn. Stat. Ann. § 68-31-602(b),

provides that, among other things, “waste-to-energy in-

cineration (resource recovery) will substantially lessen

our dependence on landfills as a means of disposing of

solid waste, aid in the conservation and recovery of valua-

ble resources, [and] conserve energy in the process. . . .

Implemented through comprehensive solid waste man-

agement planning by local government, these policies

have resulted in a significant increase in resource recov-

ery facilities. Between 1985 and 1990 annual combustion

® See also Pa. Stat. Ann. title 35, § 6018.102(2) (encouraging the

development of resource recovery facilities “as a means of manag-

ing solid waste, conserving resources, and supplying energy”) ;

Michigan Solid Waste Policy, supra note 5 (establishes goal of

managing 35 to 45 percent of the state’s municipal waste through

the use of resource recovery facilities and reducing the amount of

MSW going to landfills to 10 percent by the year 2005).

1]

of MSW with energy recovery increased from 7.6 to 29.7

million tons. 1/992 Update at 3-2, Table 24; see also id.

at 3-3. The 1990 level is projected to increase more than

50 percent by the year 2000 and reach 46.2 million tons.

Id. at 4-16 and 4-18, Table 34. An important source of

electric energ,, the federal government has projected a

seven-fold increase between 1991 and 2010 in the

amount of electricity generated in the United States from

MSW combustion. See U.S. Dept. of Energy, National

Energy Strategy 126 (1st ed. 1991/1992).

The court of appeals’ decision is a severe setback—and

a Classic “Catch-22”—for amici and many other com-

munities that followed Congress’ lead and developed re-

source recovery facilities. These actions were taken with

knowledge that resource recovery facilities were not only

environmentally superior, but also generally more costly

in the short run than landfilling MSW.” If the ash residue

from a resource recovery facility must now be managed

subject to hazardous waste standards, operating costs will

increase dramatically. In this connection recent EPA data

show that the cost of disposal in a hazardous waste land-

fill is ten times the cost of disposal at a nonhazardous

waste (Subtitle D) landfill:

Although 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 ash in a Subtitle C facility compared to a

Subtitle D landfill: the cost of transporting and dis-

posing of MWC ash in a Subtitle C facility is approxi-

mately $453.00 per ton; the cost of doing so in a

Subtitle D landfill is approximately $42.00 per ton.

*The processing or “tipping” fees charged by modern resource

recovery facilities are generally $40 to $100 per ton of municipal

solid waste processed. Kiser, supra note 5, at 156. In contrast, the

1990 average landfill tipping fee in the United States was $26.56

per ton. National Solid Wastes Management Association, 1990

Landfill Tipping Fee Survey 6, Table 10 (1991).

12

Memorandum from William K. Reilly, Administrator,

U.S. EPA, to All Regional Administrators, Subject: Ex-_

emption for Municipal Waste Combustion Ash From

Hazardous Waste Regulation Under RCRA _ Section

3001(i), at 7 (September 18, 1992), reprinted in Pet.

App. 41a, 48a-49a. As a consequence of that more than

tenfold increase in ash disposal costs, the tipping fees

charged by individual resource recovery facilities could

easily double or triple.”

Finally, these increases in MSW management costs need

to be considered in context. Protection of public health

and the environment is a primary concern of amici and

a principal factor underlying development of resource re-

covery facilities by the communities amici represent.

Nevertheless, the cost of complying with federal environ-

mental mandates has become a serious concern for local

government. See Ohio Municipal League, Ohio Metro-

politan Area Cost Report for Environmental Compliance

(September 15, 1992); Municipality of Anchorage,

Alaska, Paying for Federal Environmental Mandates: A

Looming Crisis for Cities and Counties (January 1993).

Pursuant to the Federal Advisory Committee Act, 5 U.S.C.

app. 2, EPA has established the Local Government-Small

Community Advisory Committee to address these finan-

cial concerns and related matters. See 57 Fed. Reg.

54393 (November 18, 1992). But as a consequence of

the court of appeals’ decision, many communities across

the United States that are already grappling with serious

fiscal problems now face an additional burden—a dra-

matic increase in waste management costs far beyond the

level of cost anticipated when those communities chose

* MSW combustion ash amounts to approximately 25 percent (dry

weight) of unprocessed MSW input. 1992 Update at 3-3. Accord-

ingly, the tipping fee for each ton of MSW processed would gen-

erally include the cost to dispose of 0.25 tons of ash (i.e., 25 percent

of $453 or approximately $113). With the increases in ash disposal

cost noted above, a tipping fee currently in the range of $50 per ton

of MSW processed (see supra note 7) would triple.

13

resource recovery facilities as an environmentally sound

solid waste management strategy. The result could be to

force many existing resource recovery facilities to shut

down, and future development of new facilities would

essentially be eliminated, contrary to RCRA’s policy of

encouraging resource recovery.’

b. One additional point should be noted in this re-

gard. Hazardous waste landfill capacity is quite limited.

It has been estimated that as of the end of 1987, the

United States had 34 million tons of hazardous waste

landfill capacity."" Only one hazardous waste landfill has

been permitted since 1987 (in fact, only one hazardous

waste landfill has been permitted during the past twelve

years).'' Moreover, since this case was initially before

the Court, the number of hazardous waste landfills has

declined by one, and there are now only 20 hazardous

waste landfills in the United States. See William Gruber,

TSD Summary 1993, El Digest 14, 17 (January 1993).

*It is likely to be more economic for many communities to shut

down their resource recovery facilities, landfill the communities’

MSW, and pay the associated landfill tipping fees as well as the

fixed costs on the dormant resource recovery facilities rather than

operate the facilities and have to absorb the cost to manage ash

residue as hazardous waste. See supra notes 7 and 8. Moreover,

the potential liability associated with navigating the complex

scheme of federal hazardous waste regulations would further dis-

courage the use of resource recovery facilities, in direct contradic-

tion of Congress’ policy of encouraging these facilities.

'” Regulation of Municipal Solid Waste Incinerators: Hearings

on H.R. 2162 Before the Subcomm. on Trensportation and Hazard-

ous Materials of the House Comm. on Energy and Commerce, 101st

Cong., Ist Sess. 198 (1989) (testimony of David L. Sokol, Chair-

man of the Institute of Resource Recovery). EPA has not published

an estimate of hazardous waste landfill capacity in the United

States.

"This is the Last Chance, Colorado hazardous waste landfill,

which began operation in July, 1991. See Jeffrey D. Smith, Hazard-

ous Waste Landfill Facility Information, EI Digest 24 (March

1992), Last Chance has 2.5 million tons of capacity. Jd. at 26,

14

Given the difficulty of siting hazardous waste landfills,

significant additional capacity is unlikely to become avail-

able soon. On the other hand, resource recovery facilities

currently in operation produce approximately 8.5 million

tons of ash each year. See supra p. 5. If as a result

of the decision below that ash is required to be disposed

in hazardous waste landfills, it can readily be seen that all

of the United States’ current hazardous waste landfill ca-

pacity could be consumed within a very short period.

3. Finally, the court of appeals’ decision is wrong as

a matter of statutory construction. This Court has often

stated that in determining the meaning of a statute, courts

should look to the particular statutory language at issue

within the context of the statute as a whole, including its

object and policy. E.g., Crandon v. United States, 494

U.S. 152, 158 (1990). The Seventh Circuit’s narrow reli-

ance on the absence of the word “generation” in section

3001(i) to conclude that resource recovery facility ash is

subject to hazardous waste regulation ignores that funda-

mental tenet of statutory construction (section 3001 (i)

is reproduced in the Appendix to this brief).

a. When Congress adopted section 3001(i) as part of

the 1984 amendments to RCRA, EPA’s 1980 “household

waste exclusion” unambiguously excluded from hazardous

waste regulation the ash residue that remains following

combustion of household waste. City of Chicago, 948

F.2d at 349 (EPA's 1980 preamble “most definitely ex-

empted ash from regulation as a hazardous waste”).

Adopted as part of EPA’s regulations governing RCRA’s

hazardous waste management program, the household

waste exclusion implemented congressional intent to ex-

clude waste streams produced at the household level from

hazardous waste management. See 45 Fed. Reg. 33084,

33099 (May 19, 1980) (quoting S. Rep. No. 988, 94th

Cong., 2d Sess. 16 (1976) (RCRA’s hazardous waste

management program “is not to be used to control the

disposal of substances used in households or to extend

15

control over general municipal wastes based on the pres-

ence of such substances”) ). EPA concluded that “[s]ince

household waste is excluded in all phases of its manage-

ment, residues remaining after treatment (¢.g., incinera-

tion, thermal treatment) are not subject to regulation as

hazardous waste.” 45 Fed. Reg. at 33099 (emphasis

added). Importantly, EPA emphasized that incinerator

ash was not subject to hazardous waste regulation because

the exclusion applies to “all phases of [the] management”

of household waste, including ash residue after treatment,

such as incineration.

Congress is presumed to know an agency's interpreta-

tion of a law pertinent to legislation Congress is enacting,

see Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990),

and when Congress enacted section 3001(i) in 1984 the

regulatory status of MSW ash was clear: ash remaining

after incineration of household waste was not subject to

RCRA Subtitle C hazardous waste regulation because the

household waste exclusion already encompassed “all

phases” of the “management” of household waste. The

focus of Congress’ “clarification” in 1984 was whether

EPA’s 1980 regulation limiting the exclusion only to

household waste—as opposed to including waste from

non-household sources that contribute to the municipal

waste stream (e.g., small commercial and industrial estab-

lishments, schools, etc.)—-was consistent with Congress’

intent. As explained in the Senate Report that accom-

panied this legislation:

Resource recovery facilities often take in such “house-

hold wastes” mixed with other, non-hazardous waste

streams from a variety of sources other than “house-

holds,” including small commercial and industrial

sources, schools, hotels, municipal buildings, churches,

etc. * * * New section 300I1{d' [sic] clarifies the

orieinal intent to include within the household waste

exclusion activities of a resource recovery facility

which recovers energy from the mass burning of

16

household waste and non-hazardous waste from other

sources.

S. Rep. No. 284, 98th Cong., 2d Sess. 61 (1983) (em-

phasis added). Directly reflecting that intent, the statute

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 for the purposes

of regulation under this subchapter” if the facility receives

and burns only household waste and nonhazardous com-

mercial or industrial solid wastes and establishes appropri-

ate procedures to assure that hazardous wastes are not re-

ceived at or burned at the facility. 42 U.S.C. § 6921(i).

In short, the plain language of the section 3001(i)

“clarification” does nothing to terminate the prior exclu-

sion for ash from resource recovery facilities that burn

household waste. Instead, section 3001(i) “clarified” the

preexisting household waste exclusion by providing that

a resource recovery facility that burns household waste

and nonhazardous waste from sources other than house-

holds (e.g., commercial sources) will remain entitled to

the exclusion if precautions are taken to ensure that the

facility does not accept or burn hazardous waste.

The court of appeals’ majority ignores this context and

narrowly reads section 3001(i) as an evisceration of

EPA’s regulatory position by focusing on the absence of

the word “generation” in section 3001(i). Nothing in the

legislative history even remotely suggests that Congress,

by not including the word “generation”, intended the re-

sult reached by the court of appeals. To the contrary,

since 1976 Congress has on numerous occasions expressed

its intent to promote resource recovery facilities. See, e.g.,

42 U.S.C. § 6902(a)(1) (objectives of RCRA include

promotion of resource recovery and resource conservation

systems). In fact, the Senate Report accompanying sec-

17

tion 3001(i) explicitly states that “[i]t is important to

encourage commercially viable resource recovery facilities

and to remove impediments that may hinder their develop-

ment and operation.” S. Rep. No. 284, supra, at 61.

Key legislative history confirms that section 3001 (i) ex-

cludes resourez recovery facility ash from hazardous waste

regulation. The Senate Report, supra, accompanying the

legislation describes the section 3001(i) exclusion as fol-

lows: “All waste management activities of such a facility,

including the generation, transportation, treatment, storage

and disposal of waste shall be covered by the exclusion. . . .”

S. Rep. No. 284, at 61 (emphasis added). Put another way,

Congress unequivocally intended to exclude “all waste man-

agement’ activities associated with resource recovery fa-

cilities from hazardous waste management standards.

That is precisely what the statute says—activities that

would constitute “otherwise managing hazardous wastes,”

which necessarily includes generation of hazardous waste,

are excluded (the Conference Committee adopted the Sen-

ate’s proposed clarification of the household waste exclu-

sion without change; H.R. Conf. Rep. No. 1133, 98th

Cong., 2d Sess. 79, 106 (1984)). When examined in this

overall legislative context, the court of appeals’ reliance

on the absence of the word “generation” in section 3001

(i) is plainly incorrect.”

The Seventh Circuit’s decision may also result from a mis-

conception regarding the nature of landfilled MSW and MSW

combustion ash. The court of appeals said “(ijt is unlikely that

Congress, in an express effort to promote the proper disposal of

dangerous substances that otherwise would seep into the ground

and water table, would sanction the dumping of massive amounts of

hazardous waste in the form of ash into ordinary landfills.” 948

F.2d at 352. But contrary to the court of appeals’ assumption, MSW

combustion ash poses far less environmental concern than landfilling

of MSW. See supra note 5; see also State of Florida, Division of

Administrative Hearings, Final Order Approving Certification,

Application for Power Plant Site Certification of Lee County Solid

Waste Resource Recovery Facility (No. 90-3942EPP), at 3-4 (June

19, 1992) (adopting Recommended Order’s finding of fact 17 (De-

‘18

b. Finally, when this case initially was before the

Court, the Solicitor General argued that the language of

section 3001(i) was unclear and, therefore, reviewing

courts should defer to the reasonable interpretation of

section 3001(i) set forth in the EPA Administrator's Sep-

tember 18, 1992 memorandum, supra pp. 11-12. Brief for

the United States as Amicus Curiae, No. 91-1328, at 8,

12 (on petition for a writ of certiorari) (citing Chevron,

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

467 U.S. 837, 844 (1984)). On remand, the Seventh

Circuit declined to defer to the EPA Administrator's in-

terpretation on the grounds that the EPA Administrator's

memorandum was yet another change in EPA’s position

on the issue. 985 F.2d at 304.

Amici continue to believe that the statutory language,

taken as a whole, exempts resource recovery facility ash

from hazardous waste regulation. Nevertheless, should

this Court conclude that section 3001(i) is ambiguous,

the Seventh Circuit’s refusal to defer to the EPA Admin-

istrator’s reasonable interpretation of section 3001(i) was

wrong. See, e.g., Chevron, 467 U.S. at 843-44. Revised

agency interpretations deserve deference, e.g., Rust v.

Sullivan, 111 §. Ct. 1759, 1769 (1991), as agencies may

cember 9, 1991) that leachate from MSW combustion ash is far

less of an environmental concern than the leachate from MSW).

In fact, MSW combustion ash is now being beneficially reused in a

variety of applications, including road construction and as a raw

material in cement manufacturing. See Richard W. Goodwin, De-

fending the Character of Ash, Solid Waste & Power 18 (September/

October 1992). The Seventh Circuit’s above-quoted statement also

appears to have been made without considering the record in this

case—disposal of ash at a monofill (a sanitary landfill that receives

only municipal incinerator ash) that is lined and equipped with

ground water monitoring and leachate collection systems. Pet. at 7.

Those disposal standards are generally required by Michigan law,

Mich. Comp. Laws § 299.432a (the monofill is in Michigan) and

typical of the laws of a number of other states. See, e.g., Mass.

Regs. Code title 310, § 19.119. See also 40 C.F.R. part 258 (adopt-

ing stringent federal criteria for municipal landfills and monofills

receiving MSW combustion ash).

19

need to revisit such matters on a continuing basis. See

Chevron, 467 U.S. at 863-64. Moreover, this is not a

case where an agency has reversed an authoritative posi-

tion on an issue of statutory interpretation.’* Thus, even

if this Court finds the language of section 3001(i) to be

ambiguous, deference should be granted to the EPA Ad-

ministrator’s reasonable interpretation of the statute,

namely, that resource recovery facility ash is not subject to

hazardous waste regulation under RCRA.

In sum, the Seventh Circuit’s interpretation of section

3001(i) jeopardizes the viability of existing resource re-

covery facilities and the development of new facilities, and

encourages environmentally inferior alternatives (such as

landfilling) for managing municipal solid waste, all of

which is contrary to clearly expressed federal policy. To

resolve the conflict in the Circuits and clarify this impor-

13 While EPA’s 1985 regulatory preamble suggests an interpreta-

tion of section 3001(i) that would not exempt MSW ash that

“routinely exhibits” hazardous waste characteristics, the preamble

concludes with EPA stating that “[it] does not believe the [1984

RCRA amendments— including section 3001(i)] impose new regula-

tory burdens on resource recovery facilities that burn household

and other non-hazardous waste, and the Agency has no plans to

impose additional responsibilities on these facilities.” 50 Fed. Reg.

28702, 28726 (July 15, 1985). Importantly, that concluding state-

ment is made after EPA restates its preexisting 1980 policy that

MSW ash is not subject to regulation as hazardous waste. /d. at

28725. Subsequent statements by EPA officials only demonstrate

the Agency’s apparent struggle to resolve the confusion surround-

ing the 1985 preamble. See Resource Conservation and Recovery

Act—Oversight: Hearings Before the Subcomm. on Hazardous

Wastes and Toxic Substances of the Senate Comm. on Environment

and Public Works, 100th Cong., Ist Sess. 427-428 (1987) (statement

of J. Winston Porter, EPA Asst. Administrator, Office of Solid

Waste and Emergency Response) (after reconsideration of its 1985

statements, EPA believes section 3001(i) was intended to exempt

MSW ash); Regulation of Municipal Solid Waste Incinerators,

supra note 10, at 33 (statement of Sylvia Lowrance, EPA Director,

Office of Solid Waste) (EPA continues to follow its 1985 inter-

pretation).

20

tant issue of federal environmental law, this Court should

grant the petition for a writ of certiorari and reverse the

judgment of the court of appeals.

— CONCLUSION

For the foregoing reasons, amici urge the Court to

grant the petition for a writ of certiorari.

Respectfully submitted,

Scott M. DUBoFF *

ANDREAS H. LESKOVSEK

WINSTON & STRAWN

1400 L Street, N.W.

Washington, D.C. 20005-3502

(202) 371-5704

Counsel for Amici Curiae

* Counsel of Record Broward County, Florida, et al.

(Additional Counsel Listed on Inside Cover)

la

APPENDIX

Section 3001(i) of the Resource Conservation and Re-

covery Act, 42 U.S.C. § 6921(i).

(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 pur-

poses of regulation under this subchapter, 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 contain hazardous waste identi-

fied 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 appro-

priate notification or inspection procedures to assure

that hazardous wastes are not received at or burned

in such facility.