Respondents Brief — Chicago v. Environmental Defense Fund

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No. 92-1639

—-

du the Supreme Court of the Hnited States

OCTOBER TERM, 1993

THE CITY OF CHICAGO, et al.,

Petitioners

ENVIRONMENTAL DEFENSE FUND, INC., et al.,

Respondents

On Writ Of Certiorari To

The United States Court Of Appeals

For The Seventh Circuit

BRIEF FOR RESPONDENTS

Richard J. Lazarus*

Washingtor. University

School of Law

St. Louis, MO 63130

Karen Fiorini (314) 935-6495

Environmental Defense

Fund R. Edward Wilhoite, Jr.

1875 Connecticut, N. W. Lerner & Wilhoite

Suite 1016 1007 West Webster Ave.

Washington, DC 20009 Chicago, IL 60614

(202) 387-3500 (312) 477-1364

Of Counsel Counsel for Respondents

* Counsel of Record

"| BEST AVAILABLE COPY

QUESTION PRESENTED

Whether Section 3001(i) of the Resource Conservation

and Recovery Act (RCRA), 42 U.S.C. 6921(i), exempts a

resource recovery facility that incinerates municipal solid waste

from the requirements of Subtitle C of RCRA applicable to

hazardous waste generators when that facility generates an ash

residue that would otherwise constitute a hazardous waste under

RCRA.

TABLE OF CONTENTS

ty ey) beae |

STATUTORY PROVISIONS INVOLVED .......... l

I |

INTRODUCTION AND SUMMARY OF

ST eee | 5

EEO ee jos

I THE PLAIN LANGUAGE OF RCRA

DOES NOT EXEMPT HAZARDOUS

ASH GENERATED BY A

MUNICIPAL SOLID WASTE

RESOURCE RECOVERY FACILITY

FROM SUBTITLE C REGULATION ... 7

I. RCRA’S OBJECT AND STRUCTURE

ARE CONSISTENT WITH THE VIEW

THAT SECTION 3001(i) DOES NOT

EXEMPT HAZARDOUS ASH FROM

Ts 6 ads oo 6s es 88 8 19

Il. THE LEGISLATIVE HISTORY OF

RCRA SECTION 3001(i) DOES NOT

SUPPORT EXEMPTING

HAZARDOUS ASH FROM SUBTITLE

ET «sae bee cersecs: 31

IV. EPA’S VIEW THAT SECTION 3001(i)

EXEMPTS MUNICIPAL

INCINERATOR ASH FROM RCRA

SUBTITLE C REGARDLESS OF ITS

HAZARDOUSNESS IS NOT

ENTITLED TO JUDICIAL

Tis ba 's's 5 oss 6 08 0 6 5 37

SST TRE 50

APPENDIX .. 2.0.00. .. A-l

TABLE OF AUTHORITIES

Cases:

A.H. Phillips v. Walling, 324 U.S. 490 (1948, -.. 2 8

Adams Fruit Co. v. Barrett, 494 U.S. 638 (1990) .... 45

American Hospital Ass'n v. National Labor Relations Board,

LIES. Ct. IS39 (1991) ee, 34, 47

B.F. Goodrich v. Murtha, 958 F.2d 1192 (2d Cir. 1992) . 22

Batterton v. Francis, 432 U.S. 416 (1977)........... 45

Bowen v. Georgetown University Hospital, 488 U.S. 204

Ee ee er eer 43

Burlington Northern R. Co. v. Oklahoma Tax Commission,

481 U.S. 454 (1987)

GUO 4 nid ditwtetilae lo. oe goa eara a ea rare ae 20

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

Inc., 467 U.S. 837 (1984)......... 7, 37-44, 46, 47, 49

Chrysler Corp. v Brown, 441 U.S. 281 (1978) .. . 43, 44, 46

Commissioner v. Clark, 489 U.S. 726 (1989) ......... 8

Cottage Savings Ass'n v. Commissioner, 111 S.Ct. 1503

GUO stk we seeds tenes ad dn eae 43

Cases (continued):

Davis v. United States, 495 U.S. 472 (199Q) ...... 45, 46

DeBartolo Corp. v. Florida Gulf Coast Building and

Construction Trades Council, 485 U.S. 568 (1988) ...... 8

Demarest v. Manspeaker, 498 U.S. 184 (1991) . . 35, 36, 38

Department of Transportation v. Federal Labor Relations

FES, Ge Wa GD hiv alone p eedesue see 38

Dole v. Steelworkers, 494 U.S. 26(1990)........ 19, 38

El. duPont de Nemours & Co. v. Collins, 432 U.S. 46

SE cs oa nh ewe ee ec became ie at 41

SE sk ak bk eta one ea ee re 8, 46

Estate of Cowart v. Nicklos Drilling Co., 112 S. Ct. 2589

Ee ast acen uct) seen eh CShVemaneeees 35, 38

Good Samaritan Hosp. v. Shalala, 113 $.Ct 2151

NN otk, iam: ita! eecle’ ag cern tae ae a ee a a 7, 41

Green v. Bock Laundry Machine, 490 U.S. 504

CE «56S Rew Cae EE WERE eee ee 32, 33

Haig v. Agee, 453 U.S. 280 (1981). ........... 35, 36

Hallstrom v. Tillamook County, 493 U.S. 20 (1989) .... 40

Immigration and Naturalization Service v. Cardozo-Fonseca,

er a ED be 06s en es Saree ear es 32, 41

K Mart Corp. v. Cartier, 486 U.S. 281 (1988)... ... 7, 32

Lincoln v. Vigil, 113 S.Ct 2024 (1993) ............ 44

Cases (continued)

Lindahl v. Office of Persennel Management,

470 U.S. 768 (1985)

Maislin Industries, U.S. v. Primary Steel, Inc..

497 US. 116 (1990) |

Martin ¥. Occupational Safety and Health Review Comm'n.

1li S. Ct. 1171 C199])

Merrill Lynch v. Curran, 456 U.S. 353 (1982) 5 , ae

MidAtlantic National Bank v. New Jersey Department

Environmental Protection, 474 U.S. 494 (1986) ... . 20,

National RR. Passenger Corp. v. Boston & Maine Corp.,

np a ee ee eee

New York v. United States, 112 $.Ct. 2408 (1992)... . .

NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974)

North Haven Board of Education v. Bell,

Pe SD go 5 obec uawuke becuse kee

Pauley v. BethEnergy Mines, Inc., 111 S.Ct. 2524 (1991) .

Pittston Coal Group v. Sebben, 488 U.S. 105 (1988) .. .

Public Citizen v. United States Department of Justice,

ee We UND ks keh bvaeebwaeneseas

Public Employment Retirement System of Ohio v. Betts,

en aT gO a CE A Meld ao an a

Sable Communications v. FCC, 492 U.S. 115 (1989)... .

, 36

Cases (continued):

Skidmore v. Swift & Co., 323 U.S. 134 (1944) ....... 45

State of New Jersey v. Gloucester, 821 F. Supp. 999

ee Ses SE hua et eet ee ree eee OO eee 22

Stinson v. United States, 113 S. Ct. 1913

TR sa AN a A Pe One Ree i hae ee 37, 38, 40, 43

Sullivan v. Zebley, 493 U.S. $21 (1990) ........... 38

United States v. Board of Commissioners of Sheffield, ALA,

TU A hg ee AN ar he es ie 36

United States v. Rutherford, 442 U.S. 544 (1979) ...... 36

Watt v. Alaska, 451 U.S. 259 (1981).............. 4]

Statutes and Regulations:

tT ned RES ge np TS Remo cer ae es 44

ST ne ew dna kw oa rain 45

Ree ie on eee. Meee Lt ch tebe ebaeccu eas 29

Comprehensive Environmental Response, Compensation, and

Liability Act (CERCLA), 42 U.S.C. 9601 et seg. ...... 22

Hazardous and Solid Waste Act of 1984 (HSWA), Pub. L. 98-

616, 98 Stat. 3221 (1984) ......... 20-22, 28, 31, 35, 41

Pub. L. No. 94-580, §§ 3002-3004, 90 Stat. 2806-2808

SE a 26 tka eke ead a 6 Sh ee eats 20

Pub. L. No. 99-499, Title I, § 124(b),

er Cr. tue a ee 4 Ob ob kOe eke 18

vil

Statutes and Regulations (continued):

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

SE OR crates eatal ras oleracea statis ciate passim

Se ers ES its oe Ke oat ene ae 22

42 USC. 6902(6) elt ak eet eds bog e 27

Se Shs CLOUD oo. Oreo ota s so elke 6, 28

ae Seas GE oo 5 0 6 0 oe betes wes 19, 25

CDE cxv ev neaeaacas eben 21

ee ED wae sc 6 os 2a Cae a 49

ws a ds) ce eRe ples 12, 14, 15

ee es GUEED one ven cS last ucdnend ,

og ee ee eee 29

ee, ieee eres oe ee ee eo 49

SECs GE sick cewek ste avendicoe vs 14

Subtitle C (42 U.S.C. 6921-6939e) ....... passim

Ce as GPE 6 55 5 EO ee Kore we 18

CO RO EE ee eee ee ee 21

ne es SI ah hl Ghee pk Cen ons 2!

af 7 0 Pe a ee 21

OE IR ne eae en 21

vill

Statutes and Regulations (continued):

ee Se Gs 0-0 a 66 66 00 0 ale ek ek a passim

we OE ho ee eae se ee ee ke oe ee 12

Se ie ED ce vc veces eceeewsees 19

Se ee EE as beatae areata ee ee es 12

Oe. SE pawe ees askesdeapene 10, 12

Oe Wr: GE onc ee cee aoa daa 21

Ce We GD cbs Antec ewres ber cads 24

eee UD fk case nw at Fe tiene 3, 21

Cp es ETE s bie we ce bee een 28

En Es caste oxy ie 49-06 2-0 469 BO 28

ay aie ET: sh oh ya a a 10

ee eens GN ahi oie ale a eet ae 10

GE UDA. Graeme 6 ie es 40

ee ee od ows ee ck ews cd ose 22

Se Es irate Widen ta alee Aa ae 44, 45

RS TE ed er a ean ore er eee 25

a wks a sg ore dah wea oe eo 28

I oe ae a al ow eee gp ae 68 Pe 8 e 3

ES aed wre so: wk hp wah ete Ak hw 6 28

Statutes and Regulations (continued):

40 C.F.R.

RE Es Oke ee ae 15

Maes cl, hoe eos os ws oe 25

PI a! ee a 49

ON oe oe ok ok 15

Bs ook oe a ak ache wits Be. 3

MNES. So ot Te te ee 3

hc oo ene oo eat 15

ER ae ok Slee Sa Pa 1!

INT 22. enc sre One S Pate, 1

ea ain «Mya eee cia he a) peer ey 1

ee ee ee ener 12, 15

Te Ce Tray Dee eer ee -. 10

Pt 264, SubptO ................00.., 28

ere ee ee ree 10

Mae ae, eee ee 10

Spee ree aes 24, 47-49

Miscellaneous:

Robert A. Anthony, /nterpretive Rules, Policy Statements,

Manuals, and the Like -- Should Federal Agencies Use Them to

Bind the Public, 41 Duke L. J. 1311 (1992) ......... 46

Robert A. Anthony, Which Agency Interpretations Should Bind

Citizens and Courts, 7 Yale J. Reg. 1 (1990) ...... 44, 46

Attorney General’s Manual on the Administrative Procedure

SN a ake ae ett bao 6 ow 46

J. Bailey, Fading Garbage Crisis Leaves Incinerators Competing

for Trash, WALL ST. J. Al (Aug. 11, 1993) ........ 31

Richard A. Denison & John Ruston, Recycling & Incineration --

Evaluating the Choices (1990) ... 0. ec ec cece 26

i. ee ee er rar ee 34

om ee reer eee ee ee 28

Oe | ree a a eran ee ore 25

50 Ped. Cag. ZE7ZS (ISSS) 2 ww teem 4}

50 Fed. Reg. 28726 (1985) ............. 9, 36, 40-42

ee Re Ea ee ara oe 50

55 Fed. Reg. 17303-17304 (1990)... .......... 47, 48

55 Fed. Reg. 30798, 30861 (1991) ..........-44.. |

S56 Fed. Bane. TESS TACO (IGFET) 2 nsec ween 28

eee ee er ee 49

56 Fed. Reg. 50986-50988 (1991) ...........44-5- 30

xX]

Miscellaneous (continued):

ee RUD noe ecb e cebu eu neue xs 47

of . 8 Sg. ere =

58 Fed. Reg. 9248, 9253 (1993)

Franklin Associates, Characterization of Products Containing

Lead and Cadmium in Municipal Solid Waste in the United

States 1970 to 2000 (EPA Office of Solid Waste, January

ME Conc als Ge ad bese ek ae ak oe aes Ga kaos 26

M. Gerrard, 3 Environmental Law Practice Guide (1992) . 10

Michael Herz, Deference Running Riot: Separating Interpretation

and Lawmaking Under Chevron, 6 Admin. L. J. 187

re atc a ate hy ok beet hd Se Ad a A we Re 8 46

H.R. Rep. No. 94-1491, 94th Cong., 2d Sess. (1976) ... 20

H.R. Rep. No. 97-570, 97th Cong., 2d Sess. 10 (1982) .. 20

H.R. Rep. No. 98-198, 98th Cong., 2d Sess. (1983) . 20, 22

H.R. Rep. No. 101-1021, 101st Cong., 2d Sess. (1991) . . 34

David Kosson, Teresa Kosson, & Hans van der Sloot, Evaluation

of Solidification/Stabilization Treatment Processes for Municipal

Waste Combustion Residues, (USEPA Risk Reduction

Emgmeormme Laboratory, 19935)... ce cee 23

Lead Poisoning, Hearings before the Subcomm. on Health and

the Environment of the House Comm. on Energy and Commerce,

a On ED 6 nc ches ca ese ce iw 23

B. Meier, Finding Gold, Of a Sort, in Landfills, NYT A14:4

io a a's oe 60'S SOU Ne 6s EO OES 6 A 31

Xil

Miscellaneous (continued):

Peter Menell, Beyond the Throwaway Society: An Incentive

Approach to Regulating Municipal Solid Waste, 17 Ecol. L. Q.

go C ncl ah aoe We Ae OCR Ae ie ee 27

Thomas W. Merrill, Judicial Deference to Executive Pt ecedent,

101 Yale L. J. 969 (1992)... 2... ee eee ees 38

Municipal Incinerator Ash: Hearing on H.R. 2517, 4255, and

4357 Before the Subcomm. on Transportation, Tourism, and

Hazardous Materials of the House Comm. on Energy and

Commerce, 100th Cong., 2d Sess. (1988) ...--.--+-> 34

Municipal Incinerators: Fifty Questions Every Local Government

Should Ask (National League of Cities, Dec. 1988) . . 13, 30

Regulation of Municipal Solid Waste Incinerators, Hearing

before the Subcomm. on Transportation and Hazardous Materials

of the House Comm. on Energy and Commerce on H.R. 2162,

101st Cong., Ist Sess. (1989)... -- ++ eee ee 26, 34, 47

Resource Conservation and Recovery Act Amendments of 1991,

Hearings Before the Subcomm. on Environmental Protection of

the Senate Comm. on Environment and Public Works, 102nd

Cong., Ist Sess. Pt2 (1991) ...---- seer e ee reees 24

Resource Conservation and Recovery Act Oversight, Hearings

Before the Subcomm. on Hazardous Wastes and Toxic Substances

of the Sen. Comm. on Environment and Public Works, 100th

Cong., Ist Sess. Pt. OE. cores wees a ees 27, 48

Resource Conservation and Recovery Act Reauthorization,

Hearings before the Subcomm. on Commerce, Transportation,

and Tourism of the House Comm. on Energy and Commerce,

97th Cong., 2d Sess. (1982) ...---- +e eer rere 28

S. Doc. No. 248, 79th Cong., 2d Sess. (1946) .......-. 44

Xiil

Miscellaneous (continued):

S. Rep. 94-988, 94th Cong., 2d Sess. (1976) .......... 9

S. Rep. No. 98-284, 98th Cong., Ist Sess. (1983)... 20. 32

S. Rep. No. 101-228, 101st Cong., Ist Sess. (1989) .... 34

S. Rep. No. 102-301, 102d Cong., 2d Sess. (1992)... . . 34

Solid Waste Disposal Act Amendments of 1983, Hearings before

the Subcomm. on Environmental Pollution of the Senate Comm.

on Environment and Public Works, 98th Cong., Ist Sess.

Shake a eis week eee eee. 28

Cass R. Sunstein, Law and Administration After Chevron, 90

Colum. L. Rev. 2071 (1990) .............. 38, 39, 44

The 1992 Municipal Waste Combustion Guide, WASTE AGE

TE ig eal ty ge ee 23

USEPA Office of Research and Development, Methodology for

Assessing Environmental Releases of and Exposure to Municipal

Solid Waste Combustor Residuals (April 1991)... . . 24, 47

USEPA Office of Solid Waste and Emergency Response, The

Nation’s Hazardous Waste Management Program at a

Crossroads: The RCRA Implementation Study (1990). 11, 20

USEPA, National Small Quantity Hazardous Waste Generator

ee oe a. ere ees, GRie 21

USEPA, Strategy for Reducing Lead Exposure (1991) .. . 23

XIV

In the Supreme Court of the United States

OCTOBER TERM, 1993

No. 92-1639

THE CITY OF CHICAGO, et al.,

Petitioners

Vv.

ENVIRONMENTAL DEFENSE FUND, INC., et al.,

Respondents

On Writ Of Certiorari To

The United States Court Of Appeals

For The Seventh Circuit

BRIEF FOR RESPONDENTS

STATUTORY PROVISIONS INVOLVED

Section 3001(i) of the Resource Conservation and Recovery

Act (RCRA), 42 U.S.C. 6921(i), and Sections 1004(6) & (7), 42

U.S.C. 6903(6) & (7), of RCRA, are set forth in an appendix to

this brief.

STATEMENT

Respondents Environmental Defense Fund, Inc. and Citizens

For A Better Environment brought this action, asserting that

petitioner City of Chicago’ is violating the Resource Conservation

and Recovery Act (RCRA), 42 U.S.C. 6901 et seq., by failing to

' Petitioners City of Chicago and Richard M. Daley, Mayor of

the City of Chicago, are referred to collectively in this submission as

“the City.”

comply with that Act’s Subtitle C hazardous waste requirements in

handling the hazardous waste ash residue generated by its operation

of a municipal solid waste resource recovery facility. The district

court granted the City’s motion for summary judgment, agreeing

with the City that Section 3001(i) of RCRA exempts the City’s

resource recovery facility from Subtitle C’s requirements

applicable to hazardous waste generators. The court of appeals

reversed. This Court subsequently granted the City’s petition for

a writ of certiorari, vacated the judgment below, and remanded the

case to the court of appeals for reconsideration in light of the

views expressed by the Administrator of the United States

Environmental Protection Agency (EPA) in a memorandum to

regional administrators dated September 18, 1992. On remand,

the court of appeals reinstated its earlier judgment.

1. The City of Chicago owns and operates a municipal solid

waste resource recovery facility at which it receives and burns

solid waste collected from households and commercial enterprises

located throughout the City. The resource recovery facility

receives 200 to 250 truckloads of refuse each day, totalling

350,000 tons of waste per year. The facility in turn generates

110,000 to 140,000 tons of ash, the toxicity of which is routinely

high enough to qualify it as a “hazardous waste" as defined by

regulations implementing Subtitle C of RCRA. Between 1981 and

1987, 32 out of 35 samples of ash tested exhibited sufficiently high

leachable concentrations of lead, cadmium, or both to be classified

a hazardous waste under established EPA testing procedures for the

identification of hazardous wastes based on their “toxicity

characteristic." Pet. App. 6a. The “toxicity characteristic"

measures a waste’s potential to leach specified contaminants into

the environment above threshold levels deemed hazardous by EPA.

Whether a particular waste is hazardous turns therefore on at least

two factors: the chemical makeup of the compound and its physical

characteristics.’

> At the time EDF commenced this litigation, EPA utilized a

process called the "Extraction Procedure" or "EP toxicity test" to

determine which wastes exhibit the characteristic of toxicity. EPA

currently uses a different process called the “toxicity characteristic

The City, however, has not in the past, and does not currently

comply with Subtitle C in transporting, storing, or disposing of the

hazardous ash. Pet. App. 6a-7a. The City has not, as is required

of generators of hazardous waste, applied for and received an EPA

identification number prior to engaging in any of these regulated

activities. See 40 C.F.R. 262.12. The City likewise does not

purport to comply with packaging, labelling, or container

requirements applicable to hazardous wastes. See 40 C.F.R.

262.30-33.

Nor has either the waste hauler hired by the City to transport

the hazardous ash,’ or any of the facilities where the ash has been

ultimately disposed, met the requirements for Subtitle C

transporters or disposal facilities. Until 1987, the City sent its ash

to a former limestone quarry, which was not permitted to accept

hazardous wastes. R.12 at 416. The City also sent the ash to a

sanitary landfill in Michigan that failed to comply with the basic

design elements of hazardous waste landfills. R.34 at { 24.

Among other shortcomings, there was no double liner or double

leachate collection system, which are required in licensed

hazardous waste landfills to guard against the migration of

hazardous constituents into any nearby groundwater supplies. /d.;

see 42 U.S.C. 6924(0).

2. On January 27, 1988, respondents filed a complaint against

the City, alleging that the City was violating Subtitle C of RCRA

in its handling of hazardous ash generated at the City municipal

solid waste resource recovery facility. The City filed a motion for

summary judgment on the ground that RCRA Section 3001(1)

exempts from Subtitle C regulation both municipal solid waste and

the ash generated from its combustion by a resource recovery

facility. The City did not contest respondents’ claim that the

concentrations of hazardous constituents in the ash would otherwise

leaching procedure” or “TCLP" to make this determination. See 40

C.F.R. 261.24(a).

> See R.68 at Response 12 ("R.68" refers to item number "68"

in the record below).

render it a "hazardous waste” within the meaning of RCRA. Nor

did the City contest respondents’ assertion that the City was not

complying with RCRA’s Subtitle C requirements. Pet. App. 6a-

7a, 23a-24a. The district court granted the City’s motion for

summary judgment. Pet. App. 33a. The court concluded that

Section 3001(i) exempts hazardous ash that the City’s facility

generates from Subtitle C.

3. The court of appeals reversed. Pet. App. Sa-21a. Looking

to “what the statute actually says," the court of appeals found

dispositive that “Section 3001(i) mentions ‘the treatment, storing,

disposing of or otherwise managing’ of the household and

commercial waste, but fails to include among those activities

generating a different waste product.” Jd. at 18a (emphasis in

original). "It does not follow,” the court reasoned, "that the

generation of hundreds of tons of a whole new substance with the

characteristic of a hazardous waste should be exempt from

regulation just because Congress wanted to spare individual

households and municipalities from a complicated regulatory

scheme if they inadvertently handled hazardous waste.” Jd. The

court also stressed that hazardous waste “generation” is excluded

from the statutory definition of "management." /d. Judge Ripple

dissented. /d. at 21a.

4. On February 18, 1992, the City of Chicago petitioned (No.

91-1328) for a writ of certiorari. Respondents responded by

agreeing that the writ should be granted, but that the judgment of

the court of appeals should be affirmed. At this Court’s invitation

(112 S. Ct. 1932), the Solicitor General filed a brief

recommending that the Court grant the petition, vacate the

judgment below, and remand for reconsideration in light of a

memorandum dated September 18, 1992, which the EPA

Administrator distributed to regional EPA offices, that supported

the City’s position. See Pet. App. 41a-49a. The Court remanded

for reconsideration in light of EPA’s memorandum. 113 S. Ct. 486

(1992).

5. On remand, the court of appeals reinstated its prior

judgment. Pet. App. la-4a. According to the court, the “plain

language of the statute is dispositive." /d. at 3a. Judge Ripple

dissented. /d. at 3a-4a.

INTRODUCTION AND SUMMARY OF ARGUMENT

Much about this case is undisputed. The City does not here

dispute that the ash that the City’s municipal waste incinerator

generates is hazardous under EPA’s standard testing procedures.

There is likewise no dispute that Congress concluded that

protection of human health and the environment requires that

hazardous wastes be handled only pursuant to RCRA’s strict

Subtitle C requirements. Nor is there any disagreement regarding

the fact that the City’s ash, despite its hazardousness, is not being

handled in this manner.

This case presents the question whether RCRA Section 3001(i)

allows this to occur. Like the court of appeals below, we think not.

We do not question the City’s claim that Congress intended to

promote resource recovery facilities. But, as the appellate court

concluded (Pet. App. 20a), it would seem “unlikely,” if not

entirely “absurd,” to suppose “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."

1. In support, we need go no further than the plain

language of the statute, which makes clear that Congress never

enacted such a far reaching exemption from the scope of RCRA’s

rigorous regulation of hazardous waste. Congress instead

conferred a regulatory exemption on the City’s resource recovery

facility that, while quite generous, did not abandon RCRA’s

environmental protection and waste minimization objectives.

Congress exempted the incineration process itself from Subtitle Cc

regulation by providing that the receipt and burning of municipal

solid waste shall not be considered the management of hazardous

waste, notwithstanding the fact that household waste routinely

includes hazardous materials. This exemption relieves the City of

many of Subtitle C’s most rigorous requirements.

The plain language of Section 3001(i), however, does not

exempt from Subtitle C the ash that the City’s facility generates.

Entirely missing from the statutory language is any suggestion that

Section 3001(i) exempts the City’s facility as a "generator" of

hazardous waste, which is a distinctly regulated activity under

RCRA Subtitle C. Nor is there any support for the City’s

contention that Section 3001(i) exempts those downstream entities

that subsequently manage that ash if hazardous. Indeed, Section

3001(i) never even mentions those facilities.

2. The City’s proposed construction of Section 3001(i) also

cannot be squared with the structure and purpose of RCRA. The

environmental and human health costs of extending the legal fiction

of nonhazardousness to the ash generated by the City would be

enormous. Contrary to the City’s claim, RCRA is not a statute

that generally exempts resource recovery facilities from Subtitle C

regulation. Such facilities are routinely regulated under Subtitle C

when they manage hazardous wastes. Congress subordinated the

promotion of resource recovery to environmental protection and

described its purpose as promoting resource recovery “which

preserve[s] and enhance[s] the quality of air, water, and land

resources.” 42 U.S.C. 6902(a)( 10).

3. The relevant legislative history is likewise unavailing to the

City. The sharp contrast between the actual statutory language and

that contained in a legislative report on which the City relies--the

latter purports to add a critical term not present in the statute--only

underscores the weakness of the City’s argument. Although

legislative history may sometimes be relevant to determining the

meaning of ambiguous statutory language, it most certainly may

not have the practical effect of adding language plainly not in the

Statute itself.

4. Because, moreover, congressional intent is clear, there is

no statutory gap for the agency to fill and EPA’s opposing view of

the meaning of the statute is entitled to no deference. In addition,

the way in which EPA announced its regulatory conversion--

rejecting its prior view that Section 3001(i) does not exempt

hazardous ash from Subtitle C--renders any judicial deference

inappropriate. EPA’s new view is not the result of an exercise of

legislatively delegated lawmaking authority, which would be

entitled to deference under Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984). It is not

the product of the kind of reasoned decisionmaking process

required for legislative rulemaking by the Administrative

Procedure Act. Its sole official expression is an internal agency

memorandum issued without the safeguards, including public input,

that underlie the rationale for judicial deference.

5. Finally, contrary to the City’s exaggerated claims,

affirming the judgment of the court below will not mean that all

municipal incinerator ash is hazardous waste and therefore must

automatically be subject to Subtitle C. It simply means that those

who generate ash, like generators of other kinds of potentially

hazardous waste, must test that waste for its hazardous

characteristics and subsequently handle any portion of the ash that

is hazardous consistent with Subtitle C. It also means that

municipalities will likely take further steps to promote RCRA’s

primary objectives -- source reduction and waste minimization --

in order to reduce incinerator intake of those constituents that

cause the ash residue to be hazardous.

ARGUMENT

I. THE PLAIN LANGUAGE OF RCRA DOES NOT

EXEMPT HAZARDOUS ASH GENERATED BY A

MUNICIPAL SOLID WASTE RESOURCE RECOVERY

FACILITY FROM SUBTITLE C REGULATION

A. This case presents a pure question of statutory

construction. “The starting point in interpreting a statute is its

language, for ‘[i]f the intent of Congress is clear, that is the end

of the matter."" Good Samaritan Hosp. v. Shalala, 113 S.Ct

2151, 2157 (1993), quoting Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 842 (1984). In

ascertaining whether there is such a “plain meaning," this Court

“must look to the particular statutory language at issue, as well as

the language and design of the statute as a whole." K Mart Corp.

v. Cartier, 486 U.S. 281, 291 (1988): National RR. Passenger

Corp. v. Boston & Maine Corp., 112 §. Ct. 1394, 1401 (1992).

The Court may also consider any relevant judicial canons of

Statutory construction in determining whether the meaning of the

statutory language is sufficiently plain to give it controlling weight.

See, e.g., DeBartolo Corp. v. Florida Gulf Coast Building and

Construction Trades Council, 485 U.S. 568 (1988): EEOC y.

Arabian American Oil Co., 111 S. Ct. 1227, 1237 (1991) (Scalia,

J., concurring). Of particular relevance to this case is the

established canon that "[a]ny exemption from such humanitarian

and remedial legislation must * * * be narrowly construed, giving

due regard to the plain meaning of the Statutory language." A.H.

Phillips v. Walling, 324 U.S. 490, 493 (1945): see Commissioner

v. Clark, 489 U.S. 726, 739 (1989) ("usually read the exception

narrowly in order to preserve the primary operation of the

provision"). As the Court explained, the canon’s rationale is that

“[t}o extend an exemption to other than those plainly and

unmistakably within its terms and spirit is to abuse the

interpretative process and to frustrate the announced will of the

people." 324 U.S. at 493.

In this case, the plain language of RCRA creates no exception

from Subtitle C for hazardous ash generated from the combustion

of household wastes and nonhazardous commercial and industrial

wastes. Section 3001(i) 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 * * *." The provision goes on to

define what it means by "municipal solid waste” by providing that

the facility can "receive[ } and burn[ ] only (i) household waste *

* *, and (ii) solid waste from commercial or industrial sources that

does not contain hazardous waste * * *," Finally, Section 3001 (i)

includes certain safeguards against the facility receiving and

burning hazardous wastes. The exemption applies only if the

facility “does not accept hazardous wastes" and. to that end,

requires that "the owner or operator of such facility has established

contractual requirements or other appropriate notification or

inspection procedures to assure that hazardous wastes are not

received at or burned in such facility."

The plain meaning of this language is that the "municipal solid

waste" that the incinerator receives and burns shall not be

considered a “hazardous waste" if the City recovers energy from

the process and follows certain procedural safeguards. The legal

effect of such a legislative determination is, as the statute expressly

provides, that a municipal incinerator’s receiving and burning of

municipal waste “shall not be deemed to be treating, storing, or

disposing of, or otherwise managing hazardous wastes” within the

meaning of Subtitle C.

In this case, therefore, the City cannot be considered a

treatment, storage, or disposal ("TSD") facility subject to the strict

permitting requirements set forth in RCRA Subtitle C and in

EPA’s implementing regulations. Section 3001(i) exempts the

City’s resource recovery facility from those requirements,

notwithstanding its receipt and burning of household waste that, as

the City correctly acknowledges (Br. 4), "sometimes contains some

components that qualify as hazardous waste under the federal

scheme.”

Significantly, at the time Congress enacted Section 3001(i) in

1984, there was no explicit statutory language in RCRA allowing

for any household waste exclusion.’ In addition, EPA's then-

existing regulation excluding household waste from Subtitle C

regulation did not extend to a resource recovery facility that mixed

household wastes with nonhazardous commercial and industrial

waste. However, to be economical, those facilities needed the

volume of waste supplied by those additional sources. Facility

operators also harbored a very real concern that their inadvertent

receipt of hazardous waste would cause a municipal incinerator to

be deemed a hazardous waste treatment, storage, or disposal

facility. See 50 Fed. Reg. 28726 (1985).

* The exclusive support for that regulatory exclusion was

language contained in a legislative report accompanying RCRA in

1976. See S. Rep. 94-988, 94th Cong., 2d Sess. 16 (1976).

Section 3001(i) addressed these concerns. It allowed a

household waste exclusion in the resource recovery context. It

also allowed a resource recovery facility to mix household wastes

with nonhazardous wastes from other sources. And Section

3001 (i) conditioned the exemption on the owner or operator of the

facility establishing “appropriate notification or inspection

procedures to assure that hazardous wastes are not received at or

burned in such facility," rather than on an absolute guarantee from

the facility that no hazardous wastes had in fact been received or

burned.

Contrary to the City’s contention (Br. 22. 23), such an

exemption is hardly so "implausibly narrow" as to amount to an

“empty gesture." The most rigorous, far-reaching, and costly

aspects of RCRA’s Subtitle C are its requirements applicable to

TSD facilities. As described by one commentator, "[a]ny person

engaged in the treatment, storage, or disposal of any hazardous

waste * * * is subject to the very strict, complex, and expensive

regulatory requirements of RCRA. * * * The full brunt of EPA’s

enforcement efforts under RCRA tends to be focused on the

owners and operators of TSD facilities * * *." Michael Gerrard,

3 Environmental Law Practice Guide §29.05[1], p. 29-52 (1992).

Perhaps most significantly, by virtue of their not being

considered TSD facilities, municipal waste incinerators are not

subject to corrective action and closure, and financial assurance

requirements, which are likely the most expensive and far-reaching

regulatory requirements added by HSWA A successful TSD

Subtitle C's TSD requirements are set forth in RCRA at 42

U.S.C. 6924 and in EPA’s implementing regulations at 40 C.F.R. Pts

264, 265, and 270. Corrective action requires all TSD permittees to

clean up all solid waste management units located on the same

facility, regardless of when the units were created or closed. 42

U.S.C. 6924(u),(v). “This corrective action requirement is one of the

major reasons that generators and transporters work diligently to

manage their wastes so as to avoid the need to obtain a * * * TSD

permit.” Gerrard, § 29.06[3][d] p. 29-69. EPA estimates the total

national cost of complying with corrective action as between 7 and

permitting process takes an average of four and one-half years to

complete and, in light of the rigorous regulatory requirements,

many applications are not successful. See USEPA Office of Solid

Waste and Emergency Response, The Nation’s Hazardous Waste

Management Program at a Crossroads: The RCRA Implementation

Study, 49-50 (1990). Thus, rather than being “implausibly

narrow” (Pet. Br. 22), the plain meaning of Section 3001(i)

confers a substantial and generous regulatory exemption on the

City’s incinerator.

B. The City, however, proposes a far more expansive view of

Section 3001(i). It contends that the plain meaning of Section

3001(i) goes further than to dictate the circumstances when

municipal solid waste shall not be considered hazardous waste.

According to the City, the language of Section 3001(i)

unambiguously expresses the additional congressional intent that

the ash produced from the incineration process shall not be

considered a “hazardous waste” within the meaning of RCRA even

where, as is not contested by the City here, that ash exhibits one

of the EPA-defined characteristics of a hazardous waste. Based on

this reasoning, the City asserts that it cannot be considered to be

managing a hazardous waste when it manages the ash. And,

taking its position to its logical extreme, the City further contends

that those entities with whom the City arranges to transport, treat,

store, dispose, or reuse the hazardous ash are likewise exempt

from Subtitle C.

The plain language of Section 3001(i), however, admits of no

such possible construction. The ash produced by the incinerator

is nowhere mentioned in the provision. The only waste that is the

subject of the exemption is the municipal solid waste that the

42 billion dollars. 55 Fed. Reg. 30798, 30861 (1990). Closure

provisions require that the TSD facility “clean close" by removing all

wastes (40 C.F.R. 264.351); and financial assurance regulations are

intended to ensure that each TSD owner or operator will actually

have the financial resources necessary for closure and for liability for

sudden accidental occurrences (40 C.F.R.264.143,264.147(a)).

incinerator receives and burns. The statute does not purport to

address the status of the ash that is produced from incineration.

In particular, missing from the statutory language is any

suggestion that the facility shall not be deemed to be "generating"

a hazardous waste in the event that the ash produced contains high

levels of hazardous constituents in a leachable form. Nor is there

any suggestion in the statutory language that those downstream

regulated entities who subsequently transport, treat, store, and

dispose of the hazardous ash are not "managing" hazardous waste,

within the meaning of RCRA. Indeed, Section 3001(i) never even

mentions those downstream from the municipal waste facility.

The City advances (Br. 14-17) several textual arguments to

support its insistence that the plain language supports its view. We

address each in turn below. None is persuasive.

1. First, there is no merit to petitioners’ claim that the

reference in Section 3001(i) to “otherwise managing" extends to

“generating” a hazardous waste. In RCRA, Congress carefully and

precisely defined the terms "management" and “generation” in a

manner that provides, as the court of appeals explained, for "no

overlap whatsoever" (Pet. App. 19a). RCRA defines “hazardous

waste generation” as "the act or process of producing hazardous

waste." 42 U.S.C. 6903(6). “Hazardous waste management” is

defined as “the systematic control of the collection, source

separation, storage, transportation, processing, treatment,

recovery, and disposal of hazardous wastes." 42 U.S.C. 6903(7).°

Hence, “otherwise managing" in Section 3001(i) refers to those

specific management activities not "otherwise" expressly listed in

* The distinction between generation of hazardous waste and

the management of hazardous waste, including its disposal, is further

revealed in RCRA’s detailed statutory scheme, which sets out

separate and exclusive regulatory schemes for these various activities.

Compare 42 U.S.C. 6922 (generators) with 42 U.S.C. 6923

(transporters) and 42 U.S.C. 6924 (TSD facilities); and compare 40

C.F.R. Pt 262 (generators) with Part 263 (transporters) and Parts

264-265 (TSD).

the provision. These include "collection," "source separation,"

“transportation,” "processing," and "recovery." By clear statutory

definition, “otherwise managing” does not include "generation."

2. Likewise lacking merit is the City’s contention (Br. 15) that

the word "disposing" in Section 3001(i) denotes clear congressional

intent to exempt hazardous ash from the requirements of Subtitle

C. Otherwise, the City argues (Br. 22), the word "disposal"

would have no meaning because the hazardous ash is the only

substance that the resource recovery facility is disposing. This is

simply not so. The plain meaning of this clause is that the

incinerator shall not be deemed to be "disposing" of hazardous

waste either when it burns municipal waste that it receives or when

it disposes of (or, more likely arranges for the disposal of)

municipal solid waste that the incinerator receives, but does not

burn.

The City’s facility engages in two distinct activities that, absent

Section 3001(i), might have been deemed "disposing" of hazardous

waste. First, there is the burning process itself, during which the

municipal solid waste is incinerated. Section 3001(i) makes plain

that the incineration process does not constitute the disposal of

hazardous wastes, notwithstanding the fact that the facility is

destroying some of the hazardous constituents known to be in

household wastes.

Second, there is the City’s disposal of the waste that the

facility receives, but does not burn. The source of the City’s error

in this regard lies in its failure to consider that municipal waste

incinerators decline to burn approximately 30 percent of the

municipal solid waste they receive.’ The incinerator is therefore

’ Significant amounts of waste received at a resource recovery

facility typically must be disposed of directly, rather than being

incinerated. These wastes include (a) unprocessable wastes; and (b)

bypass wastes, such as wastes received in excess of capacity during

peak generation times or during incinerator shutdowns for repairs.

These wastes constitute approximately 30 percent of the waste that

the municipal incinerator receives. Municipal Incinerators: Fifty

obliged to arrange for the disposal of substantial amounts of

municipal solid waste. The clear advantage of Section 3001(i) in

this respect is that it provides that the incinerator’s disposing of

such municipal waste will not trigger Subtitle C.

It is therefore simply not true that the word “disposing” in

Section 3001(i) must apply to the ash generated by the incinerator

to have any meaning. "Disposing" has great significance when

applied to the sole waste referred to by Section 3001(i), which is

the "municipal solid waste" that the incinerator receives and burns.

3. The City also argues (Br. 14-15) that the City cannot be

considered a "generator" of hazardous waste because it is burning

material that is already a waste. A variant of this argument is that

the City is simply “treating” waste and the statutory exception

clearly applies to the treatment of hazardous waste. See Pet. Br.

17. In each instance, we agree with the premise but dispute the

conclusion.

Petitioners mistakenly assume that because the treatment of one

kind of waste may result in the generation of another kind of

hazardous waste, a statutory exemption applicable to the former

activity must extend to the latter as well. The short answer is that

such an assumption is improper where the two activities trigger

distinct statutory requirements directed to different kinds of risks.

See note 6, supra. Notions of proximate cause simply do not

trump clear statutery definitions. Compare 42 U.S.C. 6903(6)

(defining "hazardous waste generation") with 42 U.S.C. 6903(34)

(defining "treatment”).

Equally unpersuasive is the City’s related, curious claim (Pet.

Br. 17) that one cannot "generate" hazardous waste from materials

that themselves constitute solid waste. RCRA’s clear statutory

definitions, however, show otherwise. The term “generator” is not

defined by statute, but "hazardous waste generation" is, and it

"means the act or process of producing hazardous waste." 42

Questions Every Local Government Should Ask, 6 (National League

of Cities, Dec. 1988).

U.S.C. 6903(6). Contrary to the City’s reasoning, there is no

exception for an “act or process of producing hazardous waste"

when the process involves waste in the first instance. The sole

inquiry is whether hazardous waste is produced.

Indeed, were the rule otherwise, any kind of facility that

treated waste would be exempt from the Subtitle C generator

regulations even when that treatment produced a residue that itself

qualified as a hazardous waste. For instance, an incinerator that

burned industrial waste for the sole purpose of its destruction

(recovering no energy) would not be subjected to the requirements

applicable to a generator of hazardous waste when the incinerator

subsequently arranged for another entity to transport, treat, store,

or dispose of the waste. See 40 C.F.R. Pt 262. The facility

would be free of RCRA’s requirement that all hazardous wastes be

accompanied by a manifest as well as of the obligation to ensure

that the waste was disposed of at a permitted TSD facility. 40

C.F.R. 262.20(a). Not surprisingly, the statutory language

provides no hint of such a massive loophole to Subtitle C. And,

EPA’s regulations expressly deny the existence of such a blanket

exemption by providing that “any solid waste generated from the

treatment * * * of a hazardous waste, including any * * * ash * *

* is a hazardous waste." See 40 C.F.R. 261.3(c)(2)(i) (emphasis

added); see also 40 C.F.R. 262.10(f) ("An owner or operator who

initiates a shipment of hazardous waste from a treatment, storage,

or disposal facility must comply with the generator standards

established in this part.").

Nor, contrary to the City’s intimation, does it make a

difference that the chemical constituents that make the ash

hazardous originate in the waste processed by the incinerator. To

be sure, metals such as cadmium and lead are chemical elements

and therefore cannot be created or destroyed by the incineration

process. But what the City wrongly assumes from that premise is

that the ash produced by incineration is therefore a mere subset of

the combusted waste. In fact, the two wastes are completely

different. The waste stream is physically and chemically

transformed during the combustion process. Wholly apart from

the household waste exclusion, the combustion of nonhazardous

waste can routinely create a hazardous waste-ash residue.

As described above (see page 2, supra), it is the concentration

of hazardous constituents and their susceptibility to leaching in

their current physical state that determine whether a given waste

is considered "hazardous" under EPA’s toxicity characteristic. In

the case of incinerator ash, what makes the ash hazardous is the

way in which the incineration process dramatically increases the

concentration of hazardous constituents and, by placing them on a

substance (ash) with a disproportionately high degree of surface

area, makes those higher concentration levels far more susceptible

to leaching. See R.34 at 4{ 10, 17. Simply put, the physical

makeup of the hazardous waste produced or generated by

incineration is dramatically different from the waste that is

combusted. The combustion of nonhazardous waste may,

therefore, produce (i.e., generate) an ash that constitutes a

hazardous waste.

4. The City’s final textual argument for its proffered

interpretation is a variant on its general theme that inclusion of the

word "generating" is not necessary for Section 3001(i) to exempt

ash that fails the toxicity characteristic test. The City contends

(Br. 16) that "generating" is not necessary because Section 3001(i)

provides that a municipal incinerator shall not be deemed to be

managing hazardous waste, which is ultimately what EDF

contends, and the court of appeals held, that the City is doing.

The City’s argument is fatally flawed in several respects.

a. First, the City’s argument takes the deeming clause of

Section 3001(i) wholly out of context. The only waste to which

that clause applies is the sole waste expressly mentioned in Section

3001(i): the "municipal solid waste" that is being received and

burned. We agree that the City’s management of that waste cannot

be considered managing "hazardous waste." That is, after all,

what the statute plainly says. But what the statute plainly does not

say is that the same exemption applies to the Subtitle C

requirements applicable to a generator of a new and very different

waste -- ash -- that would otherwise constitute a hazardous waste

under RCRA.

b. Second, the City’s management of the hazardous ash is not,

in any event, the sole focus of the City’s legal argument. The City

asks the Court to conclude that the plain meaning of Section

3001(i) is that neither the City nor those entities which

subsequently transport, treat, store, dispose, or reuse the hazardous

ash are managing a hazardous waste even when that ash fails

EPA’s toxicity characteristic analysis. There is simply no basis in

the plain language of Section 3001(i), however, to conclude that

such a downstream or “waste stream" exemption exists. Those

downstream entities are never mentioned. The "resource recovery

facility recovering energy from the mass burning of municipal

solid waste" is the only entity mentioned in Section 3001(i) that

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

otherwise managing hazardous wastes for the purposes of

regulation under this subchapter." 42 U.S.C. 6921(i). There is no

parallel exemption for any other entity that is subsequently

“treating, storing, disposing of, or otherwise managing” the

hazardous ash.

c. Indeed, that is the very reason why the City is mistaken in

contending that the omission of the word “generating” from

Section 3001(i) is meaningless because, the City argues, it is

unnecessary to their argument. The word “generating” is, as a

practical matter, absolutely essential to the City’s position and

therefore its absence is fatal to the City’s claim. What the City is

seeking to avoid in this case is paying landfill disposal operators

the higher costs of disposing of hazardous ash in a Subtitle C

landfill. Whether those costs are incurred in this case does not

depend so much on whether the City is managing hazardous waste

as it does on whether those disposal facilities are managing

hazardous waste. For, if they are, those disposal facilities will

charge the City accordingly. But, without the word "generating"

in Section 3001(i), there is not even the barest support in the plain

meaning of Section 3001(i) for such a downstream exemption.

Any possible doubt in this regard is eliminated by comparing

the language of Section 3001(i) to the language of a different

provision of RCRA, which shows that Congress knew how to draft

a waste stream exemption in RCRA when it wanted to. It also

demonstrates that Congress knew how to include the word

“generating” -- the precise word missing from Section 3001(i) --

to create such a waste stream exemption. Congress provided in its

note to 42 U.S.C. 6921 that an “owner and operator of equipment

used to recover methane from a landfill shall not be deemed to be

managing, generating, transporting, treating, storing, or disposing

of hazardous or liquid wastes within the meaning of” Subtitle C.

See 42 U.S.C. 6921 note (emphasis added), added by Pub. L. No.

99-499, Title I, § 124(b), 100 Stat. 1689 (1986). Congress

included the precise term of art missing from Section 300 1(i).*

d. The absence of any plain language support for a

downstream exemption supplies yet another reason for rejecting the

City’s assertion that Section 3001(i) applies to the City’s generation

of the ash. A regulatory scheme in which the City is relieved of

its Subtitle C responsibilities as a generator of hazardous waste,

but downstream entities transporting, treating, storing, and

disposing of that ash are not, would be completely unworkable.

A TSD facility, for instance, would be responsible for complying

with Subtitle C in its management of the ash when hazardous, but

* Significantly, however, even in declaring such a downstream

exemption, Congress took care to limit its reach to avoid the very

kinds of adverse environmental effects that the City nonetheless

claims are permitted by Section 3001(i). Congress added to 42

U.S.C. 6921 note the caveat that if any of the resulting material

“meets any of the characteristics identified under Section 3001 of

subtitle C * * *, the preceding sentence shall not apply and such * *

* waste material shall be deemed a hazardous waste * * * and shall

be regulated accordingly." In other words, Congress limited the

application of the downstream exemption when necessary to ensure

that a waste that was in fact hazardous would be managed

accordingly. In this case, Congress did not even create a

downstream exemption in the first instance, so Congress’ careful

drafting of 42 U.S.C. 6921 note is doubly fatal to the City’s

argument.

the generator would never have performed the threshold

identification and manifest procedures that are essential to the

success of the regulatory program. See 42 U.S.C. 6922(a)(5).

That is simply nonsensical. How would a transporter know that it

was receiving a hazardous waste if the Subtitle C manifest system

requirements did not apply to the generator of the waste in the first

place?

But that is the very reason why it is wrong to suppose that

Congress intended to extend the exemption to the generation of ash

at all. Congress would not have exempted the resource recovery

facility from complying with the Subtitle C requirements applicable

to a generator of hazardous waste without likewise exempting those

downstream by creating a waste stream exemption. And, because

Congress plainly did not do the latter in Section 3001(i), the City’s

tortured construction that Congress did the former should likewise

be rejected.

Il. RCRA’S OBJECT AND STRUCTURE ARE CONSISTENT

WITH THE VIEW THAT SECTION 3001(i) DOES NOT

EXEMPT HAZARDOUS ASH FROM SUBTITLE C

"[Tyhe object and structure of the Act as a whole” likewise

support the view that Section 3001(i) does not provide a wholesale

exemption from Subtitle C for municipal incinerator ash. Dole v.

Steelworkers, 494 U.S. 26, 36 (1990). Congress announced two

national policies in RCRA: “the generation of hazardous waste is

to be reduced or eliminated as expeditiously as possible” and

“[w]aste that is nevertheless generated should be treated, stored, or

disposed of so as to minimize the present and future threat to

human health and the environment.” 42 U.S.C. 6902(b). Our

view that the plain language of Section 3001(i) does not exempt the

City’s ash, when hazardous, from Subtitle C regulation is

consistent with both these purposes.

By contrast, the City’s reading would make a mockery of

Congress’ effort in RCRA to protect human health and the

environment and to minimize the generation of hazardous waste.

The City’s claim that its view is nonetheless consistent with

RCRA's purposes both misreads the extent of Congress’ desire in

RCRA to promote resource recovery and misapprehends the

relationship of that resource recovery goal to municipal solid waste

incineration.

A. When Congress enacted RCRA in 1976, it sought to

“eliminate the last remaining loophole in environmental law" by

creating a comprehensive “cradle to grave" federal program for the

management of hazardous waste to protect human health and the

environment. H.R. Rep. No. 94-1491, 94th Cong., 2d Sess. 4,5

(1976); see Chemical Waste Management, Inc. v. Hunt, 112 S. Ct.

2009, 2011 n.1 (1992). In RCRA Subtitle C, Congress required

EPA to create a regulatory program applicable to the generation,

transportation, treatment, storage, and disposal of hazardous waste.

Congress conferred on EPA great discretion in determining the

substance of those rules. EPA’s sole mandate was to establish

standards "as may be necessary to protect human health and the

environment.” Pub. L. No. 94-580, §§ 3002-3004, 90 Stat. 2806-

2808 (1976).

When Congress enacted the Hazardous and Solid Waste

Amendments of 1984 (HSWA), Pub. L. 98-616, 98 Stat. 3221

(1984), which substantially amended RCRA, Congress adopted a

very different approach to the problem and to EPA. HSWA grew

out of congressional disappointment with EPA’s implementation of

the 1976 RCRA law. S. Rep. No. 98-284, 98th Cong., Ist Sess.

2-4 (1983); H.R. Rep. No. 98-198, 98th Cong., 2d Sess. Pt. 1, 20

(1983); H.R. Rep. No. 97-570, 97th Cong., Ist Sess. 10 (1982).

Congress sought to correct “serious gaps in RCRA’s current

regulatory systems" (H.R. Rep. No. 98-198, at 20) or, as

described by EPA, to “close the loopholes in the types of wastes

and waste management facilities not covered under RCRA"

(USEPA Office of Solid Waste and Emergency Response, The

Nation’s Hazardous Waste Management Program at a Crossroads,

7 (1990)).

Hence, "Congress broadened the scope of the statute and

tightened the regulatory restraints in 1984." MidAtlantic National

Bank v. New Jersey Department of Environmental Protection, 474

U.S. 494, 506 (1986). Congress lowered the threshold for the

small quantity generator exemption from 1000 kg to 100 kg of

hazardous wastes per month (42 U.S.C. 6921(d)) and tightened up

the process for delisting a waste as hazardous (42 U.S.C. 6921(f)).

Congress required EPA to list more wastes as hazardous, add

hazardous characteristics, and strengthen agency testing procedures

(42 U.S.C. 6921(e), (f), and (g)). Congress also banned altogether

the land disposal of certain wastes and allowed the land disposal of

other wastes only if EPA promulgated within a prescribed time

period predisposal treatment standards to reduce hazardousness (42

U.S.C. 6924(d)-(h)). Finally, Congress mandated that hazardous

waste landfills meet certain minimum technological requirements,

including double liners, leachate collection systems, and

monitoring wells (42 U.S.C. 6924(o0)).

Congress understood, and specifically found in HSWA, that

"the placement of inadequate controls on hazardous waste

management wil! result in substantial risks to human health and the

environment.” 42 U.S.C. 6902(b)(5). The entire thrust of the

amendments was therefore toward increased stringency, closing

loopholes, speeding implementation, and assuring the proper

handling and disposal of hazardous wastes. HSWA reflects

Congress’ “undisputed concern over the risks of the improper

storage and disposal of hazardous and toxic substances."

MidAtlantic National Bank, 474 U.S. at 506.

It would be altogether incongruous for the Congress so

concerned with the integrity of Subtitle C as to impose its

requirements on dry cleaners and other small quantity generators

producing a mere 100 kg of hazardous waste a month,

simultaneously to create a wholesale exclusion for the hazardous

wastes that municipal resource recovery facilities generate.’ It

* The approximately 175,000 generators of 100 to 1000

kilograms of hazardous waste per month that Congress placed under

Subtitle C in 1984 generate an estimated 760,000tons of hazardous

waste per year. See USEPA, National Small Quantity Hazardous

Waste Generator Survey, 30-31 (Feb. 1985). By contrast, municipal

resource recovery facilities generate approximately 8.5 million tons

would likewise be incongruous for that same Congress, which was

so concerned about the dangers presented by the land disposal of

hazardous wastes that it mandated predisposal treatment and

minimum technological requirements for landfills, to allow the C ity

to evade such treatment and technological requirements in

disposing of its hazardous ash on land.

Such a reading of RCRA Section 3001(i) would also fly

squarely in the face of Congress’ related concern in enacting

HSWA to avoid creating more abandoned and inactive hazardous

waste sites requiring the enormous expenditure of cleanup monies

under the federal Superfund law. See Comprehensive

Environmental Response, Compensation, and Liability Act

(CERCLA), 42 U.S.C. 9601 et seq. Congress included in HSWA

the specific finding that “if hazardous waste management 1s

improperly performed in the first instance, corrective action is

likely to be expensive, complex, and time consuming.” 42 U.S.C.

6901(b)(6). Congress understood that if the regulatory gaps were

not closed, “litthe more will be done than to contribute to future

burdens on the ‘Superfund’ program.” H.R. Rep. No. 98-198,

98th Cong., Ist Sess. Pt. 1, 20 (1983)."”

—_— ee

It is no mere legal technicality that the City’s incinerator ash

fails EPA’s toxicity characteristic analysis. That determination,

of ash per year. See Amici Br. Barron County, WI, et al. 6.

Because the City would itself be a liable party under

CERCLA for the huge cost of cleaning up any Superfund sites

resulting from ash contamination, it is hard to imagine that Congress

would have created such an exemption even if it wished to reduce

the regulatory burden on municipalities. A waste that is not

considered hazardous under RCRA only because of that Act’s

household waste exclusion nonetheless constitutes a “hazardous

subutance” within the meaning of CERCLA, 42 U.S.C. 9601(14).

See, e.g, B.F. Goodrich v. Murtha, 958 F.2d 1192 (2d Cir. 1992);

Anderson v. Minnetonka , 1993 U.S. Dist. Lexis 4846 (D. Minn. 1993);

State of New Jersey v. Gloucester, 821 F. Supp. 999 (D. N.J. 1993).

That is certainly EPA’s position. See 57 Fed. Reg. 51791 (1989).

which the City does not here dispute, is based on the high

concentration of heavy metals on the ash, and the susceptibility of

those metals when concentrated on the surface of ash-like material

to leach out of landfills." The release of these high

concentrations of heavy metals, moreover, presents very real and

Significant human health and environmental risks. Lead, for

example, “is the number one evivironmental poison for children.

Lead is a poison that affects virtually every system in the body."

Lead Poisoning, Hearings before the Subcomm. on Health and the

Environment of the House Comm. on Energy and Commerce, 102d

Cong., Ist Sess. 25 (1991) (testimony of Vernon Houk. Director,

U.S. Center for Disease Control), see USEPA, Strategy for

Reducing Lead Exposure, | (1991) ("Lead is a highly toxic metal,

The City (Pet. Br. 31 n.10) and virtually all of its supporting

amici rely on a recent study to support their claim that the ash

generated by an incinerator that utilizes a scrubber is less hazardous

because “[t}he lime used in the scrubber systems * * * gives the ash

4 concrete-like character that binds heavy metals, such as lead and

cadmium, into the ash, so that they are not released into the

leachate or the environment.” Even accepting the validity of that

claim (which a more recent EPA study would seem to question (see

David Kosson, Teresa Kosson, & Hans van der Sloot, Evaluation of

Solidification/Stabilization Treatment Processes for Municipal Waste

Combustion Residues, 127, 129, 150 (USEPA Risk Reduction

Engineering Laboratory, 1993) (No. CR 818178-01-0)), what the City

conveniently ignores is that not all municipal waste resource recovery

facilities use scrubbers. Indeed. the City’s own facility does not

apparently have such a scrubber, but utilizes only electrostatic

precipitators. See R.19 Ex. I (brochure describing City facility); The

1992 Municipal Waste Combustion Guide, WASTE AGE, 99, 104-105

(Nov. 1992). It ill behooves the City to rely on a technology that not

only is not required, but that the City reportedly is not even using.

In any event, even if the City were correct, the absence of

hazardousness might simply mean that the ash would not fail the

EPA toxicity characteristic analysis in the first instance.

producing a range of adverse health effects, particularly in children

and fetuses.").'*

For this reason, the various claims made by amici supporting

the City regarding the potential beneficial reuses of hazardous ash

(e.g., road construction, cement manufacturing) are especially

misguided. See, e.g., Amicus Br. National League of Cities 5-6;

Amicus Br. Barron County, Wisconsin 18. It is precisely those

kinds of reuses, which are not subject to any regulatory oversight

under Subtitle D, that may present the greatest potential hazards.

Because ash utilization (e.g., in road building or other construction

activities) allows the placing of hazardous ash or hazardous ash-

derived products into the general environment, rather than into a

controlled disposal environment, it implicates potential exposure

pathways that extend far beyond those from ash disposal, both in

magnitude and duration.""

Indeed. much of RCRA Subtitle C and EPA’s implementing

regulations are specifically designed to guard against the dangers

that the unrestricted reuse of hazardous wastes present. Congress,

in Subtitle C, specifically singled out for express prohibition the

use of hazardous waste “for dust suppression or road treatment.”

See 42 U.S.C. 6924(1). And, consistent with congressional intent

As described, infra, at pages 47-49, there is no merit to the

City’s apparent assumption (Br. 34) that EPA's new Subtitic D

regulations applicable to municipal waste landfills will guard against

those risks. See 40 C.F.R. Pt 258.

'. See Resource Conservation and Recovery Act Amendments of

1991, Hearings Before the Subcomm. on Environmental Protection of

the Senate Comm. on Environment and Public Works, 102nd Cong.,

Ist Sess., Pt. 2, 235 (1991) (testimony of Henry S. Cole, Director,

Clean Water Action). EPA has accordingly previously stated that

"lift is not clear that potential re-use mitigates environmental

contamination." See USEPA Office of Research and Development,

Methodology for Assessing Environmental Releases of and Exposure

to Municipal Solid Waste Combustor Residuals, 4-8 to 4-10 (April

1991) (EPA/600/8-91/031).

in RCRA, EPA has broadly defined the meaning of "waste" under

Subtitle C to include many activities that involve the reuse of

hazardous waste, in order to ensure that such activities do not

escape Subtitle C’s strict scrutiny."*

Under the City’s reading, however, none of these possible

reuses of hazardous ash would be prohibited or even restricted.

The possibility of such reuses is, according to the City’s amici, a

reason why hazardous ash containing high levels of lead and

cadmium should not be subject to Subtitle C. We cannot agree.

And, more importantly, the language of Section 3001(i) does not

support the City’s contention that Congress intended to endorse

such a perverse and dangerous result.

B. Our reading of Section 3001(i) is also directly supported by

RCRA’s overriding policy "that wherever feasible, the generation

of hazardous waste is to be reduced or eliminated as expeditiously

as possible.” 42 U.S.C. 6902(b). If, as we believe was Congress’

‘* In 1985, EPA addressed the issue of the extent to which

hazardous byproducts should be considered “hazardous waste" when

those byproducts are subject to potential beneficial reuses. EPA

rejected a definition of “solid waste" within the context of Subtitle C

that would have had the effect of removing these reusable hazardous

materials from Subtitle C regulation. See 40 C.F.R. 261.2 (defining

“solid waste” for purposes of Subtitle C); 40 C.F.R. 261.4 (exclusions

from definition of “solid waste"). According to the agency,

“regulation of most of these activities is necessary to protect human

health and the environment. * * * * * Simply because a waste is

likely to be recycled will not ensure that it will not be spilled or

leaked before recycling occurs." SO Fed. Reg. 617. EPA even

addressed the risks created by the very kinds of reuses that the City

and its amici propose for hazardous ash, and the agency concluded

that those activities should be subject to Subtitle C regulation. /d. at

628 (emphasis in original) (Subtitle C “applfies] not only to

hazardous secondary materials used on the land without significant

change but also to ali products containing these wastes that are

applied to the land * * *. Thus, fertilizers, asphalt, and building

foundation materials that use hazardous wastes as ingredients and

are then applied to the land are subject to RCRA jurisdiction.”).

intent, municipalities must pay the higher cost of disposing of

hazardous ash at a facility designed for hazardous waste, they will

likely take the steps now readily available to minimize their

generation of hazardous ash.

For instance, the City could separate bottom ash from fly

ash.'* Fly ash typically constitutes only about ten percent of the

weight of the ash generated, and is the material far more likely to

fail the toxicity characteristic analysis. See Regulation of

Municipal Solid Waste Incinerators, Hearing before the Subcomm.

on Transportation and Hazardous Materials of the House Comm.

on Energy and Commerce on H.R. 2162, 10\st Cong., Ist Sess.

43 (1989) (testimony of Sylvia K. Lowrance, Director, USEPA

Office of Solid Waste) (hereinafter “House Hearing on H.R.

2162"). Like most municipalities, the City of Chicago currently

combines these two kinds of ash for disposal, thereby substantially

increasing the volume of hazardous waste produced.

In addition, the City could reform its waste collection and

incinerator intake processes to reduce the likelihood of any of the

ash residue being hazardous. For instance, greater emphasis on

materials recovery designed to eliminate materials such as

discarded batteries and other identifiable sources of toxic heavy

metals from that combusted could dramatically reduce the

likelihood that the resulting ash is hazardous. Programs aimed at

reducing household disposal of batteries, such as deposit/refund

initiatives, could also have a significant beneficial impact. See

generally Franklin Associates, Characterization of Products

Containing Lead and Cadmium in Municipal Solid Waste in the

‘* Fly ash consists of small particles that travel outside of the

combustion chamber where the ash is coilected by pollution control

devices. Bottom ash is the material that remains on the bottom of

the combustion chamber. Because many metals vaporize during the

intense heat of incineration, move up the stack, and condense on

particulate matier, the concentration of leachate metal on ash tends

to be higher on fly ash than on bottom ash. Richard A. Denison &

John Ruston, Recycling & Incineration -- Evaluating the Choices,

177, 184 (1990).

United States 1970 to 2000 (EPA Office of Solid Waste, January

1989); Resource Conservation and Recovery Act Oversight,

Hearings Before the Subcomm. on Hazardous Wastes and Toxic

Substances of the Sen. Comm. on Environment and Public Works,

100th Cong., Ist Sess. Pt. 2, 5-11 (1987); Peter Menell, Beyond

the Throwaway Society: An Incentive Approach to Regulating

Municipal Solid Waste, 17 Ecol. L. Q. 655 (1990). Such

measures would further RCRA’s stated purpose to "minimiz{e] the

generation of hazardous waste and the land disposal of hazardous

waste by encouraging * * * materials recovery." 42 U.S.C.

6902(6).

C. The City’s claim that a broad reading of Section 3001(i) is

in fact supported by RCRA’s purposes rests on a series of

erroneous assumptions regarding the relationship of Subtitle C to

resource recovery facilities. The City’s contention is also rooted

in gross exaggerations of the likely impact on municipal waste

incinerators of requiring hazardous ash, like other hazardous

wastes, to be subject to the safeguards of Subtitle C.

1. At the outset, the City’s argument based on RCRA’s

purposes, like its earlier plain meaning argument, rests on the

mistaken assumption that Section 3001(i) confers no meaningful

benefit on its resource recovery facility unless it exempts the ash

from Subtitle C regulation. As previously described (see pages 10-

11), quite the opposite is true. Under the court of appeals’

construction, which we support, Section 3001(i) provides the City

with a generous regulatory exemption by deeming the "municipal

solid waste” that it receives and burns not to be a hazardous waste,

notwithstanding that household waste is known to include

hazardous constituents. The effect of that legal fiction is that the

City avoids many of Subtitle C’s most demanding requirements.

2. The City is likewise mistaken in describing the extent to

which Congress desired to promote resource recovery at the

expense of environmental protection and human health concerns.

The City contends (Br. 13) that "[t]o encourage resource recovery,

Congress exempted resource recovery facilities from the complex

regulations governing hazardous waste by enacting Section 3001(i)

of RCRA." Contrary to the City’s contention, however, facilities

that recover resources (whether in the form of energy or materials)

from hazardous wastes are not exempt from, but are instead

generally subject to the full panoply of Subtitle C regulations when

those facilities manage or generate hazardous waste. The recycling

or re-use of a hazardous waste for beneficial purposes does not

automatically remove the waste from Subtitle C regulation. See 40

C.F.R. 261.2, 261.3; 50 Fed. Reg. 616-620 (1985); see note 14,

supra. Nor does the burning of a hazardous waste to recover

energy justify an exemption. Incinerators, boilers, and industrial

furnaces that burn hazardous waste to recover energy are all

generally subject to Subtitle C. See 40 C.F.R. Pt 264, Subpt O,

56 Fed. Reg. 7133-7240 (1991). Indeed, in enacting HSWA,

Congress reversed a prior EPA policy that had exempted facilities

that burned hazardous waste for the purpose of recovering energy

from Subtitle C. See 42 U.S.C. 6924(q); Resource Conservation

and Recovery Act Reauthorization, Hearings before the Subcomm.

on Commerce, Transportation, and Tourism of the House Comm.

on Energy and Commerce, 97th Cong., 2d Sess. 273-75 (1982);

Solid Waste Disposal Act Amendments of 1983, Hearings before

the Subcomm. on Environmental Pollution of the Senate Comm. on

Environment and Public Works, 98th Cong., Ist Sess. 195-97

(1983); see also 42 U.S.C. 6924(0)(1)(B).

Hence, at least Congress does not appear to share the City’s

belief (Br. 21) that if resource recovery facilities are "subject to

Subtitle C regulation, there could be no meaningful chance to

achieve the statutory goal of promoting resource recovery.”

Congress instead plainly subordinated the promotion of resource

recovery to the protection of human health and the environment.

Congress thus stated RCRA’s purpose as “promoting the

demonstration, construction, and application of solid waste

management, resource recovery, and resource conservation systems

which preserve and enhance the quality of air, water, and land

resources.” 42 U.S.C. 6902(a)(10) (emphasis added).

The City’s misreading of RCRA purposes and Section 3001(i)

appears to derive from its wrongly assuming that recovery of

energy from municipal waste combustion is the only type of

resource recovery facility that Congress sought to promote. RCRA

defines "resource recovery" far more broadly, however, to mean

"the recovery of material or energy from solid waste." 42 U.S.C.

6903(22). Because, moreover, other types of resource recovery

facilities are, unlike the City’s facility, subject to Subtitle C, the

City is particularly hard pressed to claim that fulfillment of

RCRA'’s resource recovery goals require extending Section 3001 (i)

beyond its plain terms to include the newly generated hazardous

ash and thereby exempt downstream facilities that subsequently

manage that hazardous ash. -

The human health and environmental implications of such an

expansion of Section 3001(i) beyond its narrow terms would also

be enormous. The implications of our literal reading of Section

3001(i)-- which allows that the resource recovery facility is not

managing hazardous waste in its receipt and burning of municipal

solid waste--are more confined, even though household wastes may

include modest amounts of hazardous materials. The resource

recovery facility incinerates the municipal solid waste that it

receives and its air emissions are subject to the Clean Air Act. See

42 U.S.C. 7429.

By contrast, the human health and environmental risks

associated with a waste stream exemption that extends to ash,

which the City proposes, are far greater. Those risks do not end

at the resource recovery facility. That is instead where they begin.

The operator of the facility and others who subsequently manage

the hazardous ash it produces are permitted to treat, store, dispose,

and reuse a hazardous waste throughout the nation as though the

waste does not contain the hazardous substances that it does in fact

contain.

Finally, the City greatly overstates the negative impact on

municipal waste combustion facilities of applying Subtitle C to its

hazardous ash.'® Affirming the court of appeals’ judgment would

‘° The briefs submitted by the City and its amici also

consistently exaggerate the benefits of municipal solid waste

incineration. For instance, the amicus brief filed on behalf of the

not mean that all incinerator ash would automatically be considered

a hazardous waste. Only that ash exhibiting the kind and

concentration of hazardous constituents and characteristics that are

the subject of EPA’s testing procedures would be so classified.

Here, the hazardousness of the City’s ash is not disputed for the

purposes of this litigation. But there is no reason to assume that

all ash would be a hazardous waste. Instead, as previously

described (see pages 26-27, supra), there are many economic

National League of Cities states a claim repeated in many of the

briefs regarding the extent to which incineration ¢* municipal waste

decreases the volume and mass of waste to be landfilled. The brief

asserts (p. 3) that “[iJncineration reduces pressure on landfill capacit’

by reducing the volume of MSW by up to 90% and the mass by

approximately 75%." But, in a more candid setting, the National

League of Cities recently advised its members quite differently:

Often, the claim is made that ‘incineration reduces the volume

of waste by 75%° or some other high percentage. This claim

can only be supported by making some misleading comparisons

between the volume and weight of a typical ton of MSW and

volume and weight of incinerator ash. The claim cannot be

supported when you consider the overall garbage disposal needs

of the entire community.

Municipal Incinerators: Fifty Questions Every Local Government

Should Ask, 7 (National League of Cities, Dec. 1988). The National

League of Cities stated that the “bottom line is that once it builds a

WTE [waste to energy] facility, the community will still need

approximately 40 percent of the landfill volume it would have needed

without incineration.” /d.

There is likewise reason to question the accuracy of the ten-fold

cost differential between Subtitle C and Subtitle D_ landfills

suggested by EPA (Pet. App. 48a-49a), which is repeated by the City

and its amici. According to EPA’s economic analysis of the new

Subtitle D regulations, the average cost per ton of disposal under the

new Subtitle D regulations will be approximately 2/7 of the average

cost per ton of disposal under Subtitle C (see 56 Fed. Reg. 50986-

50988 (1991)). Perhaps the ten-fold cost figures are derived from

the old, less exacting Subtitle D regulations.

alternatives readily available to the City (separation of fly ash from

bottom ash and materials separation programs) for reducing the

volume of hazardous ash that its incinerator produces. For that

reason, the likely effect of a ruling that Section 3001(i) does not

immunize incinerator ash from RCRA Subtitle C regulation may

well be to reduce significantly the amount of ash that is

hazardous."’

Il. THE LEGISLATIVE HISTORY OF RCRA SECTION

3001(i) DOES NOT SUPPORT EXEMPTING

HAZARDOUS ASH FROM SUBTITLE C

REGULATION

The City’s reliance (Br. 23-28) on legislative history is no

more persuasive because much of the City’s argument depends on

the same misimpression of RCRA's promotion of resource

recovery and of Subtitle C. See Br. 23-24. In fact, if the

legislative history is at all relevant in construing a provision whose

meaning is already plain (see Burlington Northern R. Co. vy.

Oklahoma Tax Commission, 481 U.S. 454, 461 (1987)), it

supports the narrower reading of Section 3001(i). The legislative

history of the Hazardous and Solid Waste Amendments of 1984

(HSWA) reveals that Congress sought to close regulatory gaps, not

create new ones. And, rather than support the City’s claim, the

committee report language upon which the City relies is

unavailing. It only underscores the impropriety of such a report

serving as a basis for adding language not contained in a statutory

provision enacted by Congress. Finally, there is no merit to the

City’s claim that the legislative history demonstrates that Congress

"Reportedly, much of the current economic plight of these

municipal waste incinerators results from increased recycling and

source separation, which reduces the amount of municipal waste

available for incineration. See J. Bailey, Fading Garbage Crisis Leaves

Incinerators Competing for Trash, WALL ST. J. Al (Aug. 11, 1993): B.

Meier, Finding Gold, Of a Sort, in Landfills, NYT A14:4 (Sept. 7,

1993). RCRA, however, can hardly be read as intending to discourage

waste minimization in order to create material for incinerators to

destroy.

ratified EPA’s pre-existing regulation that extended the household

waste exclusion to ash residues.

A. The City’s legislative history argument rests principally on

the appearance of the word “generation” in part of a Senate Report

purporting to describe the import of the language now contained

in Section 3001(1) (then Section 3001(d)). Reproduced in context,

the Senate Report provides:

New section 3001(d) clarifies the original intent to include

within the household waste exclusion activities of a resource

recovery facility which recovers energy from the mass burning

of household waste and non-hazardous waste from other

sources.

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. 98-284, 98th Cong., Ist Sess. 61 (1983).

The first sentence simply confirms the driving force behind the

clarification: to allow the mixture of household wastes with

nonhazardous wastes from other sources. It is the second

sentence, particularly its addition of the word “generation,” upon

which the City ultimately rests its entire case.

There has recently been much debate within this Court

regarding the precise weight to be given legislative history in

interpreting the meaning of ambiguous statutory language."

‘Compare, e.g, Immigration and Naturalization Service v.

Cardozo-Fonseca, 480 U.S. 42], 433 n.12 (1987), Public Citizen v.

United States Department of Justice, 491 U.S. 440, 454-55 (1989), and

Green v. Bock Laundry Machine, 490 U.S. 504 (1989) with Public

Citizen v. United States Department of Justice, 491 U.S. at 470-74

(Kennedy, J., concurring), K Mart v. Cartier, Inc., 486 U.S. 281, 291-

93 (1988), Immigration and Naturalization Service v. Cardozo-

Fonseca, 480 U.S. at 452-53 (Scalia, J., concurring); and Sable

There should be no debate, however, on the impropriety of relying

on the word “generation” to support the City’s proffered

interpretation. What the City seeks, in effect, is the addition of

language that is missing from the statute. Congress, however,

must legislate through legislation, not through legislative history.

To be sure, there are no doubt circumstances where courts are

compelled to override the literal language of a statute, such as

when necessary to avoid an obvious technical error or an absurd

result. Cf. Green v. Bock Laundry Machine, 490 U.S. 504. 510

(1989). But under no circumstances can it be warranted where. as

here, what the City seeks would amount to a huge expansion in the

substantive scope of an exception to a public health law. Here.

there is no suggestion in the legislative history that Congress ever

considered the costs and benefits of such an exception and chose

to embrace it. There is no suggestion in the legislative history that

the absence of such an exception would defeat the purposes of the

law or otherwise produce an untenable or absurd result that

Congress could not have intended. Instead, as described above

(pages 20-27, supra), the converse is closer to the mark.

Indeed, the sharp contrast between the committee report

language and the actual statutory language -- with “generation”

appearing in the former, but not the latter -- only underscores the

impropriety of substituting the former for the latter. It suggests

the possibility of committee staff awareness of the distinction,

coupled with the inability, for whatever reason, to obtain a

substantive change in the wording of the statute itself. The court

of appeals below well explained why a court should not defer to a

legislative report's addition of the term “generation” to those

activities exempted from Subtitle C: "Why should we, then, rely

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

legislation. Simply put, we shouldn’t.” Pet. App. 18a. Where,

moreover, as in this case, that addition portends such a significant

expansion in the scope of Section 3001(i)’s reach. the resulting

distinction between statute and report must be dispositive. See

Communications v. FCC, 492 U.S. 115, 133 (1989) (Scalia, J.,

concurring).

American Hospital Ass'n v. National Labor Relations Board, 11

S. Ct. 1539, 1545 (1991).""

B. The City alternatively argues (Br. 25-28) that the

legislative history demonstrates congressional intent to ratify EPA's

1980 household waste exclusion, which extended to “residues”

remaining after incineration of household waste. See 45 Fed. Reg.

33099 (1980). This argument, too, lacks merit. None of the

indicia necessary to support congressional ratification of an existing

agency interpretation is present in this case.

“Several Senators who were members of the Senate

Environment and Public Works Committee at the time of the senate

report and the same Senate Committee (Environment and Public

Works) have since expressed the view that Section 3001(i) does not

exempt hazardous ash from Subtitle C. See Pet. App. 12a-13a

(summarizing letters sent to EPA by Senators Stafford, Durenberger,

Chafee, Burdick, Baucus, and Mitchell, and Rep. Florio); S. Rep.

No. 101-228, 101st Cong., Ist Sess. 258-260 (1989). In addition,

Congress has repeatedly declined since 1984 to pass legislation that

would permit the disposal of municipal incinerator ash in Subtitle D

landfills, even when, unlike the scheme proposed by the City, such

permission would be conditioned upon the establishment under

Subtitle D of a distinct, more exacting regulatory framework that

would cover all aspects of ash management, including handling,

treatment, transportation, reuse, recycling, storage, and disposal.

See Municipal Incinerator Ash: Hearing on H.R. 2517, 4255, and 4357

Before the Subcomm. on Transportation, Tourism, and Hazardous

Materials of the House Comm. on Energy and Commerce, 100th

Cong., 2d Sess. 72 (1988); House Hearing on H.R. 2162, supra, H.R.

Rep. No. 101-1021, 101st Cong., 2d Sess. 233-234 (1991); S. Rep. No.

101-228, 101st Cong , Ist Sess. 258-260 (1989); S. Rep. No. 102-301,

102d Cong., 2d Sess. 56-60 (1992). The legislative assumption

behind many of these proposals was that “[uJnder current law,

municipal incinerator ash is subject to subtitle C or subtitle D

depending on whether it passes or fails the extraction procedure

(EP) toxicity test.” S. Rep. No. 101-228, 101st Cong., Ist Sess. 258

(1989).

First, unlike the cases upon which the C ity relies,” Congress

did not merely re-enact in whole or in part pre-existing statutory

language for which there was a longstanding administrative

interpretation when it passed HSWA in 1984. HSWA amounted

to a major overhaul of the earlier 1976 law, and Congress, in

HSWA, added Section 3001(i) in 1984. Congress could not,

therefore, have been ratifying any pre-existing interpretation of the

language of Section 3001(i). Congress was adding new language

to RCRA and speaking to the issue for the first time. If,

moreover, Congress was even aware of EPA's position with regard

to ash in 1984, the language Congress ultimately enacted suggests

congressional rejection, not endorsement, of EPA's view.

Congress even titled Section 3001(i) a “Clarification of household

waste exclusion,” which hardly suggests that the legislators were

merely endorsing what EPA had previously done. As the court of

appeals below explained (Pet. App. 18a): "Although tossed around,

the word ‘generation’ was not used in the final product. * * * The

actual words of the statute -- the end product of the rough-and-

tumble of the political process -- are the definitive statement of

congressional intent. "*!

Second, in virtually all of the cases in which the Court has

found congressional ratification, the legislative history includes

affirmative evidence that Congress was actually made aware of a

Merrill Lynch v. Curran, 456 U.S. 353. 381 (1982); Haig v.

Agee, 453 U.S. 280, 297 (1981): Lorillard v. Pons, 434 U.S. 575, 580

(1978); NLRB v. Bell Aerospace Co., 416 U.S. 267, 275 (1974).

* See Estate of Cowart v. Nicklos Drilling Co., 112 S$. Ct. 2589,

2595 (1992) ("In 1984, Congress did more than reenact § 33(g); ix

added new provisions and new language which on their face appear

to have the specific purpose of overruling the prior administrative

interpretation."); see also Demarest v. Manspeaker, 498 U.S. 184, 190

(1991) ("Where the law is plain, subsequent reenactment does not

constitute an adoption of a previous administrative construction.”).

longstanding administrative agency interpretation.” Here, as in

Demarest v. Manspeaker, 484 U.S. at 190, where this Court

rejected a similar ratification argument, “[t}here is no indication

that Congress was aware of the administrative construction * * *

at the time it revised the statute." Congress can hardly be deemed,

therefore, to have approved of EPA’s view regarding the

regulatory status of ash.

Finally, the City’s reliance on ratification is misplaced because

EPA’s 1980 interpretation did not even address the issue presented

here. The prior regulation only spoke to the question of ash

produced from the incineration of household waste alone. Section

3001(i), however, permits the combustion of a mixture of

household waste and other kinds of waste, which was not

addressed by EPA’s 1980 regulation.

The difference is significant, which is likely why EPA’s first

and, until recently, longstanding authoritative view was that ash

generated from such a mixture was not entitled to the benefit of the

household waste exclusion. See 50 Fed. Reg. 28726 (1985).

Section 3001(i) dramatically expanded the practical scope of the

household waste exclusion by allowing the mixture of household

wastes with other sources of non-hazardous wastes. Under Section

3001(i), even a resource recovery facility that burns a substantial

quantity of non-hazardous solid waste from non-household sources

2 Lindahl v. Office of Personnel Management, 470 U.S. 768, 782

(1985): North Haven Board of Education vy. Bell, 456 U.S. 512, 534.

(1982); Merrill Lynch v. Curran, 456 U.S. at 382; Haig v. Agee, 453

U.S. at 297: United States v. Board of Commissioners of Sheffield,

ALA , 435 U.S. at 135; Lorillard v. Pons, 434 U.S. at 581; United

States v. Rutherford, 442 U.S. 544, 554 n.10 (1979). To be sure, in

some of these very same cases, this Court speaks to how “Congress

is presumed to be aware of an administrative * * * interpretation of

a statute and to adopt that interpretation when it reenacts a statute

without change” (see, e.g, Lorillard v. Pons, 434 U.S. at 580-581), but

the Court has nonetheless satisfied itself that such actual awareness

is present rather than rely on the obvious fiction of awareness (see,

e.g, Lindahl v. Office of Personnel Management , 470 U.S. at 782).

is entitled to that Section’s exemption. As described above, that

is a confined exemption from Subtitle C to the extent that the

exemption means that the facility shall not be considered a Subtitle

C TSD facility, notwithstanding its processing of the hazardous

materials in household waste. But under the City’s view,

hazardous ash produced from such a facility -- the hazardous

constituents of which could come from the non-hazardous solid

waste and accumulate in tic ash -- would likewise be exempt from

Subtitle C. Hence, the “household waste" exception would be

transformed into a far broader waste stream exemption for resource

recovery facilities that burn large amounts of non-household solid

waste and generate hazardous ash. Entities subsequently managing

that ash would, under the City’s reading, be exempt from Subtitle

C. Nothing in RCRA suggests that Congress intended to create

such a regulatory loophole so far removed from the purposes of

the household waste exclusion.

IV. EPA’S VIEW THAT SECTION 3001(i) EXEMPTS

MUNICIPAL INCINERATOR ASH FROM RCRA

SUBTITLE C REGARDLESS OF ITS

HAZARDOUSNESS IS NOT ENTITLED TO

JUDICIAL DEFERENCE

In the alternative, the City endorses (Pet. Br. 29-34) EPA’s

contention that the statutory language is ambiguous and that the

Court should therefore defer to EPA’s interpretation, which

currently supports the City. No such deference is owed EPA,

however, because the statutory language is plain. In addition,

EPA’s current view is not the kind of authoritative interpretation

reached pursuant to legislatively delegated lawmaking authority

that is entitled to judicial deference.

A. “Under Chevron U.S.A., Inc. v. Natural Resources

Defense Council, 467 U.S. 837 (1984), if a statute is

unambiguous, the statute governs * * *." Stinson v. United States,

113 S. Ct. 1913, 1918 (1993). Accordingly, this Court has

repeatedly rejected an agency's interpretation when contrary to the

statute's plain meaning.*’ And, the Court has deferred to the

agency's interpretation only where “Congress’ silence or ambiguity

has ‘left a gap for the agency to fill.’" Stinson v. United States,

113. S. Ct. at 1918, quoting Chevron, 467 U.S. at 842-43.

Section 3001(i) is ambiguous, according to EPA (U.S. Br. 11),

because the City’s suggested construction is “plausible” and

because "Congress has not directly addressed the precise question

at issue’” (quoting Chevron, 467 U.S. at 842). The Solicitor

General, however, seriously misapprehends the threshold plain

meaning inquiry required by Chevron. Indeed, under the Solicitor

General's view, plain meaning would virtually never exist and

Chevron deference would therefore almost always be warranted.

The Executive Branch may desire such an approach, but that is not

the teaching of this Court's precedent.

First, while for reasons already discussed (see Part 1, supra)

we do not believe that the City’s reading is even "plausible," the

mere plausibility of a competing construction falls far short of that

necessary to persuade a court that a statute has no plain meaning.

A majority of this Court has frequently relied on the plain meaning

of a particular statutory provision to reject an agency construction,

notwithstanding the dissenters’ demonstration that an alternative,

at least plausible construction, existed. See generally Cass R.

Sunstein, Law and Administration After Chevron, 90 Colum. L.

Rev. 2071, 2091-2093 & nn. 97 & 103 (1990); see also Thomas

W. Merrill, Judicial Deference to Executive Precedent, 10\ Yale

L. J. 969, 990-993 (1992).** “An understanding that would allow

* See, e.g, Estate of Cowart v. Nicklos Drilling Co., 112 S. Ct.

2589 (1992); Demarest v. Manspeaker, 498 U.S. 184 599 (1991):

Maislin Industries, U.S. v. Primary Steel, Inc., 497 U.S. 116 (1990):

Department of Transportation v. Federal Labor Relations Authority,

494 U.S. 922 (1990); Dole v. United Steelworkers, 494 U.S. 26, 42-43

(1990); Sullivan v. Zebley, 493 U.S. 521 (1990).

** [T]he mere fact of a plausible alternative view is insufficient

to trigger the Chevron rule." Sunstein, supra, 90 Colum. L. Rev. at

2091. Compare, e.g, Dole v. United Steelworkers of America, 494

the agency to prevail merely because there is some room for

disagreement would pose an undue threat to the basic principle of

congressional supremacy in lawmaking." Sunstein, supra, 90

Colum. L. Rev. at 2093. This Court’s decisions make plain,

moreover, that a merely "plausible" reading must bow in the face

of a competing canon of statutory construction. See EEOC vy.

Arabian American Oil Co., \11 S. Ct. 1227, 1230-1231 (1991):

New York v. United States, 112 S. Ct. 2408, 2425 (1992). As

described earlier (see page 8, supra), the City’s construction flies

in the face of the settled canon that exemptions from remedial

legislation like RCRA must be narrowly construed.

Second, the Solicitor General misapprehends what the Court

means by Congress having “directly addressed the precise question

at issue” in Chevron analysis. The Solicitor General relies on the

absence of explicit statutory language discussing the status of ash

per se to conclude that a statutory ambiguity is presented. But

what the Solicitor General ignores, or at least seeks to obscure, is

that the absence of an exception to a clear statutory mandate does

not create an ambiguity. It simply means that no such exception

eXists.

Here, the statute on its face squarely addresses the issue. It

provides that generators of hazardous waste must comply with

certain requirements and it provides that those who treat, store,

and dispose of hazardous waste must comply with other

requirements. The statute does not create a household waste

exception for any facility other than the resource recovery facility.

And, with regard to that facility, the statute does not create an

exception for resource recovery facilities applicable to their status

as “generators” of hazardous waste.

U.S. 26, 42-43 (1990) with id. at 44-45 (White, J., dissenting);

compare Public Employment Retirement System of Ohio v. Betts, 494

U.S. 158, 175-178 (1989) with id. at 183-190 (Marshall, J.,

dissenting); Pittston Coal Group v. Sebben, 488 U.S. 105, 115 (1988)

with id. at 125-126 (Stevens, J., dissenting).

Most simply put, a Chevron gap for an agency to fill does not

exist Whenever a statutory enactment fails to include an exception

broader than the one actually included. Indeed, were the rule

otherwise, there would never be such a thing as plain statutory

language because it is always possible to imagine a statutory

exception that Congress could have included, but did not. It is

only where "Congress’ silence * * * has ‘left a gap for the agency

to fill’ that Chevron deference may be appropriate.” Stinson v.

United States, 113 S. Ct. at 1918, quoting Chevron, 467 U.S. at

842-43. Here, no such gap exists.”

EPA understood this in 1985 when it first authoritatively

construed Section 3001(i) immediately upon its enactment. EPA

did not then find conflicting evidence of congressional intent with

respect to whether Section 3001(i) exempts hazardous ash. EPA

concluded that it did “not see in this provision an intent to exempt

the regulation of incinerator ash from the burning of non-hazardous

Waste In resource recovery facilities if the ash routinely exhibits a

characteristic of hazardous waste." 50 Fed. Reg. 28726 (1985).

EPA understood that silence in the context of an otherwise firm

statutory mandate did not create an ambiguity about what Congress

intended. There was simply ag intent to exempt hazardous ash

* This Court's construction of RCRA in Hallstrom v. Tillamook

County, 493 U.S. 20 (1989), supports our view. At issue in Hallstrom

was the petitioners’ claim that they should not be barred from

maintaining their lawsuit against an alleged violator of RCRA

although petitioners had failed to satisfy the notice and waiting

period requirements set forth in RCRA for the bringing of a citizen

suit enforcement action. See 42 U.S.C. 6972(b)(1)(A)&(B). The

reasons why this Court rejected petitioners’ claim are equally

applicable here. The Court reasoned that "Congress could have

excepted parties from complying with the * * * [statutory]

requirement] * * *. RCRA, however, contains no exception

applicable to petitioners’ situation; we are not at liberty to create an

exception where Congress has declined to do so." Hallstrom, 493

U.S. at 26-27.

from Subtitle C regulation.”” If any EPA construction is entitled

to deference, it would be this one. It reflects the agency’s

contemporaneous view of congressional intent immediately after

the law’s passage. See Good Samaritan Hosp. v. Shalala, 113

S.Ct at 2159; E.1. duPont de Nemours & Co. v. Collins, 432 US.

46, 54-55 (1978).

B. EPA’s current view is not, in any event, entitled to the

substantia! degree of deference accorded under Chevron. This is

both because of the number of times that EPA has changed its

mind on the ash issue and the manner in which EPA reached its

most recent view.

1. It is well settled that "[aJn agency interpretation of a

relevant provision which conflicts with the agency’s earlier

interpretation is ‘entitled to considerably less deference’ than a

consistently held agency view." Immigration & Naturalization

Service v. Cardozo-Fonseca, 480 U.S. at 446 n.30, quoting Watt

v. Alaska, 451 U.S. 259, 273 (1981); Pauley v. BethEnergy Mines,

Inc., 111 S.Ct. 2524, 2534 (1991): see Good Samaritan Hospital

v. Shalala, 113 §. Ct. at 2161. As described by the court of

appeals (Pet. App. 2a-3a, | la-16a), EPA’s interpretive gymnastics

on this score border on the Olympic given the number of agency

flip-flops on the ash issue.

To be sure, an agency is entitled to change its mind,

particularly when Congress has left a policy matter for the agency

to determine. Indeed, such changes are quite often the normai

product of the political process. See, e.g., Chevron, 467 U.S. at

863-64, 865-66. But in this case, EPA did not merely shift its

*® In 1985, EPA recognized why Congress had inciuded Section

3001(i) in HSWA: to ensure that resource recovery facilities would

not become TSD Subtitle C facilities because of what they received.

50 Fed. Reg. 28725 (1985). EPA described the “principal purpose of

Section 3001(i) [as] to prevent resource recovery facilities that may

inadvertently burn hazardous waste, despite good faith efforts to

avoid such a result, from becoming subject to the Subtitle C

regulations.” Jd. at 28726.

policy view, the agency changed its mind regarding what Congress

intended in Section 3001(i) and, in particular, whether

congressional intent was ambiguous. On that question, there is no

justification for a shifting agency view and, hence, no occasion for

judicial deference.”’

2. There are yet two additional reasons why EPA’s current

view is not entitled to Chevron deference. The first relates to the

context in which the agency underwent its regulatory change-of-

heart and the second relates to the form that the agency used to

effectuate that change.

EPA announced its change in position several months after this

Court invited its views in this case (when the case was first before

the Court on the City’s petition) and just shortly before the filing

of the government's response to that invitation. Then-EPA

Administrator Reilly did so by sending an internal agency

memorandum to all EPA Regional Administrators. See Pet. App.

41a. And the Solicitor General then appended a copy of that

memorandum to its own brief to this Court. See City of Chicago

v. EDF, No. 91-1328, U.S. Br. App. la-I la.

The Solicitor General's appending of the EPA memorandum

to its brief was a thinly disguised effort to avoid the Court's

precedent for the purpose of claiming judicial deference to which

.”

There is no merit to EPA’s claims that the agency's position

has not been inconsistent. The government claims (U.S. Br. 23) that

"EPA has consistently recognized that Section 3001(i) is silent or

ambiguous with respect to the issue presented in this case. * * *

EPA has always acknowledged that a statutory gap exists that must

be filled.” Not so. EPA did initially say that the statute was “silent,”

but that was only in the sense that there was no explicit exception

applicable to ash. The agency did not find that the statute was

“ambiguous,” but rather concluded, correctly in our view, that

because of that silence the agency did “not see in this provision an

intent” to exclude hazardous ash from Subtitle C. 50 Fed. Reg.

28726 (1985). Certainly, EPA never intimated that Congress had left

it a “Statutory gap” to be filled.

EPA would in no event be entitled. This Court has made clear

that the principle of judicial deference to agency interpretation of

statutory language does not apply “to agency litigating positions

that are wholly unsupported by regulations, rulings, or

administrative practice." Bowen v. Georgetown University

Hospital, 488 U.S. 204, 212 (1988). "“Deference to what appears

to be nothing more than an agency's convenient litigating position

would be entirely inappropriate." /d. at 213; see also Cottage

Savings Ass'n v. Commissioner, 111 S.Ct. 1503, 1509 (1991).

The reason for the sudden appearance of the EPA

memorandum, just before the filing of the Solicitor General's brief

was obvious, notwithstanding that memorandum’s careful

avoidance of any reference to this pending litigation. The

memorandum sought to create the appearance of the kind of

agency interpretation to which this Court would provide deference

under Chevron. At the end of the day, however, the. agency’s

belated views on the issue in this case are entitled to the same level

of deference that they would have been absent such pre-filing

machinations: none at all.

Indeed, the way in which EPA announced its new view,

wholly apart from its obvious relationship to pending litigation,

provides a final independent basis for declining Chevron judicial

deference to the agency view. The United States and the City

wrongly assume that this Court accords Chevron deference to an

agency’s interpretation of a statute that the agency administers

regardless of the form of that interpretation. That is not the case.

The only form of administrative agency interpretation that is

clearly entitled to Chevron deference is an interpretation reached

pursuant to legislatively delegated lawmaking authority, such as a

legislative rule or an adjudicative determination. Those are the

only agency rules or determinations that “have the ‘force and effect

of law.’" Chrysler Corp. v Brown, 441 U.S. 281, 301 (1978): cf.

Stinson v. United States, 113 S. Ct. at 1918.

The proper characterization of the memorandum upon which

EPA and the City rely is not entirely clear. But what is clear is

that it is not a validly promulgated legislative rule or the result of

an agency adjudication. The interpretation was announced in an

internal agency memorandum sent to regional agency Offices.

There was no pretense of compliance with the Administrative

Procedure Act notice and comment requirements that apply to

EPA’s promulgation of legislative rules. Absent such compliance,

the memorandum, including the interpretation within it, cannot be

considered a valid legislative rule. Chrysler, supra.

EPA's unstated assumption must therefore be that the

memorandum qualifies for Clievron deference either as an

interpretive rule or as a general statement of policy, neither of

which must comply with the APA’s notice and comment

requirements to be valid. See 5 U.S.C. 553(b); see Lincoln v.

Vigil, 113 S.Ct 2024, 2033 (1993). The agency's assumption is

multiply flawed.

First, it is far from obvious that an agency’s interpretive rule,

which does not have the force of law, is entitled to the high degree

of deference accorded under Chevron. See generally Robert A.

Anthony, Which Agency Interpretations Should Bind Citizens and

Courts, 7 Yale J. Reg. 1, 55-58 (1990); Cass Sunstein, Law and

Administration After Chevron, 90 Colum. L. Rev. at 2093-2094 &

11.106. One basic reason why notice and comment is unnecessary

for interpretive rules is because "interpretative rules--as merely

interpretations of statutory provisions-- are subject to plenary

judicial review.” $. Doc. No. 248, 79th Cong., 2d Sess. 18

(1946). Where, therefore, as in this case, there has been no notice

and comment period, it is especially important that judicial review

not be limited.

The Administrative Conference of the United States (ACUS)

has recognized just that. The Conference recently recommended

that courts not give Chevron deference to agency interpretations

contained in interpretive rules unless, as is not the circumstance

here, “the reviewing court finds a congressional delegation of

authority to make definitive interpretations in an informal format "

ACUS Recommendation 89-5, | C.F.R. 305.89-5. The

Conference encouraged agencies to use informal means to keep the

public apprised of their statutory interpretations, but emphasized

that “it is important for both agencies and courts to remember that

these informal expressions should not be accorded the same weight

as definitive agency interpretations." /d.

This Court's decisions are consistent with this approach. The

Court has long characterized interpretive rules as having the

“power to persuade" but not the “power to control." Skidmore v.

Swift & Co., 323 U.S. 134, 140 (1944). Accor Jing to the Court,

such less formal interpretations are “not entitled to the same

deference as norms that derive from the exercise of the Secretary's

delegated lawmaking powers,” but instead only to “some weight on

judicial review." Martin v. Occupational Safety and Health Review

Comm'n, 111 S. Ct. 1171, 1179 (1991) (citations omitted)" see

Batterton v. Francis, 432 U.S. 416, 425 n.9 (1977) ("By way of

contrast to [legislative rules], a court is not required to give effect

to an interpretative regulation"); cf. Adams Fruit Co. v. Barrett,

494 U.S. 638, 649 (1990) ("A precondition to deference under

Chevron is a congressional delegation of administrative

authority.").

In Davis v. United States, 495 U.S. 472, 484 (1990), this

Court likewise noted the distinction: "Although the Service's

interpretive rulings do not have the force and effect of regulations,

“ "= * we give an agency's interpretations and practices

considerable weight where they involve the contemporaneous

construction of a statute and where they have been in long use”

(emphasis added). But, as described above. the agency's

pS |

In Martin, the Court contrasted the promulgation of

interpretive rules from the formal issuance of a citation and, relying

on the fact that the latter “assumes a form expressly provided for by

Congress” in the relevant statute (111 S. Ct. at 1179, citing 29 U.S.C.

658), concluded that an agency's interpretation of its own regulations

contained in the latter was entitled to great deference. In this case,

EPA's proffered interpretation is contained in a mere interpretive

rule, purports to change and not interpret pre-existing agency rules,

and does not “assume a form expressly provided for by Congress” in

RCRA.

interpretation at issue in this case, unlike that in Davis, lacks those

additional, crucial features. EPA's new view is inconsistent with

the agency's contemporaneous construction of RCRA and has not

long been in use. See also EEOC v. Arabian American Oil Co.,

It S. Ct. 1227, 1235 (1991) (declining to provide Chevron

deference to EEOC guidelines).

Second, the analysis ts no different if EPA's memorandum is

instead characterized as a “general statement of policy” rather than

as an interpretive rule.’ Such general statements of policy

cannot bind persons outside the agency, precisely because they

have been issued without the procedural safeguards provided by the

APA. Those safeguards serve an essential function. They provide

fairness to affected parties, enhance accuracy, promote reasoned

agency decisionmaking and ensure a full ventilation of the relevant

policy considerations prior to a formal agency determination.

The absence of such procedural safeguards also supplies the

reason why general statements of policy, like interpretive rules, are

not entitled to Chevron deference. See Anthony, supra, 7 Yale J.

Reg. at 55. Congress has not delegated to EPA the authority to

issue binding agency interpretations in a format other than a

legislative rule. It is therefore no matter whether the absence of

such APA procedures means that EPA's memorandum is a general

* The reason why the Reilly memorandum could be considered

a “general statement of policy,” within the meaning of the APA, is

that interpretive rules generally do not purport to make policy.

“Interpretive rules are ‘issued by an agency to advise the public of

the agency's construction of the statutes and rules which it

administers.’" Chrysler, 441 U.S. at 302 n.31, quoting Attorney

General's Manual on the Administrative Procedure Act, 30 n.3

(1947). They interpret language of a statute that has some “tangible”

or “specific meaning.” Robert A. Anthony, /nterpretive Rules, Policy

Statements, Manuals, and the Like -- Should Federal Agencies Use

Them to Bind the Public, 41 Duke L. J. 1311, 1325 & n.64 (1992);

see also Michael Herz, Deference Running Riot: Separating

Interpretation and Lawmaking Under Chevron, 6 Admin. L. J. 187,

191-192 (1992).

Statement of policy or an interpretive rule. In either circumstance,

it does not reflect the kind of careful and reasoned agency

policymaking determination that this Court has held is entitled to

Chevron deference. Cf. American Hospital Ass'n v. National

Labor Relations Board, 111 S. Ct. 1539, 1546 (1991) ("extensive

notice and comment rulemaking” and “careful analysis of the

comments that it received"). ” Hence, although EPA may

certainly issue such internal agency memoranda -- and indeed may

need to do so in many circumstances to respond to pressing issues

- the agency cannot reasonably expect those memoranda that

purport to imterpret statutory language to receive Chevron

deference.

3. Finally, the substantive inadequacies in EPA's reasoning in

the Reilly memorandum underscore why Chevron deference is not

warranted when, as here, an agency announces a new statutory

interpretation in such an informal manner. EPA contends (Pet.

App. 46a-49a) that its new Subtitle D Part 258 regulations are

sufficient to regulate ash in a manner that will protect human

health and the environment. What EPA fails to consider, however,

is that those regulations do not purport to address the full range of

problems that hazardous ash presents. Indeed, those regulations

expressly apply only to “nonhazardous municipal waste combustion

ash.” 56 Fed. Reg. 51000 (1991) (emphasis added).

Hence, while EPA has repeatedly acknowledged that the pre-

disposal activities associated with hazardous ash, such as its

transportation, storage, and reuse, pose significant hazards,”' the

Perhaps reflecting the agency's awareness that its current

position may not be the result of considered deliberation, the

Solicitor General advises in his brief before this Court that the

Agency's view “could be revised again” (U.S. Br. 9).

* See SS Fed. Reg. 17303-17304 (1990): USEPA Office of

Research and Development, Methodology for Assessing

Environmental Releases of and Exposure to Municipal Solid Waste

Combustor Residuals, 4-1 to 4-11, 5-1 to 5-15 (April 1991)

(EPA/600/8-91/031); House Hearing on H.R. 2162, 101st Cong., Ist

Subtitle D Part 258 regulations do not address those issues at all.

See 55 Fed. Reg. 17303-17304 (1990). The Part 258 regulations

address only the design and operation of landfill disposal sites;

they completely ignore these other significant activities, leaving

them unregulated. Subtitle C regulation would, in contrast,

provide for the kind of comprehensive “cradle to grave" approach

that Congress (and heretofore EPA) has always deemed necessary

for the management of hazardous waste.

In addition, EPA fails to consider that, even with respect to

landfill disposal, the requirements specified under the Part 258

landfill regulations are far less stringent than those previously

recommended by EPA. For instance, in 1987, EPA advised

Congress that "in most locations, a composite or a double liner

system will be necessary to be protective of human health and the

environment.” Resource Conservation and Recovery Act Oversight,

Hearings Before the Subcomm. on Hazardous Wastes and Toxic

Substances of the Senate Comm. on the Environment and Public

Works, 100th Cong., Ist Sess. 445 (1987) (EPA responses to

prehearing questions) (hereinafter RCRA 1987 Oversight Hearings).

EPA further asserted that “fly ash, if handled separately, should be

stored or disposed of only in a monofill" (id.) and that

“monofilling is the preferred method of storage or disposal of

bottom ash or combined (fly ash and bottom ash) but [we] realize

that in some cases co-disposal may be the best available option”

(id. at 444). The Part 258 regulations, however, express no

preference for monofilling; nor do they establish additional

requirements applicable to co-disposal units.

EPA had also, understandably, previously supported more

stringent design requirements for the disposal of fly ash than for

the disposal of bottom ash. EPA specified that fly ash be

monofilled only in a double-lined facility (as is generally required

under Subtitle C) that utilizes a leachate collection system above

and between the liners. RCRA 1987 Oversight Hearings, supra, at

Sess. 45, 46-48, 50-51 (1989) (testimony of Sylvia K. Lowrance,

Director, USEPA Office of Solid Waste); see also R.34 at 418.

444-445 In contrast, Part 258 includes no such requirement

applicable to the monofilling of fly ash.

Finally, EPA ignores a critical underlying assumption that it

made when it promulgated its final Part 258 regulations. EPA

concluded that those regulations would be adequate to protect

human health and the environment based on the assumption that

‘the quality of leachate from [municipal solid waste landfills} will

improve over time.” 56 Fed. Reg. 50982 (1991). In particular,

EPA anticipated “positive changes in the leachate resulting from *

"=the addition of new RCRA hazardous waste listings and

characteristics * * * [which] would divert waste currently disposed

of at subtitle D facilities to subtitle C facilities.” Jd. Of course.

EPA’s new view regarding the nonapplicability of subtitle C to

hazardous ash will have the exact opposiie effect. It will increase

the presence of hazardous constituents at subtitle D landfills and

therefore decrease the quality of the resulting leachate.

EPA, however, offers no explanation for its change-of-heart

regarding the effectiveness of the Part 258 regulations to address

the problems of hazardous ash. Nor does the Solicitor General

confront the issue in the government's brief in this case. The

likely reason why neither does also provides the reason why

Chevron deference is not warranted. EPA’s new view is not based

on the kinds of rulemaking or adjudicatory records that provide for

4 full ventilation of the issues and promote reasoned

decisionmaking.”

* Notably, EPA’s current stance on the regulatory status of ash

under RCRA is difficult to square with the analogous issue of how

domestic sewage should be regulated under RCRA. RCRA

specifically excludes “solid or dissolved material in domestic sewage”

from the definition of “solid waste” (and therefore “hazardous waste”

because hazardous waste is a subset of solid waste). See 42 U.S.C.

6903(27), 6903(5). This exclusion extends, like the household waste

exclusion, to “any mixture of domestic sewage and other wastes that

passes through a sewer system to a publicly-owned treatment works

for treatment.” 40 C.F.R. 261.4(a1)ii). The rationale of the

domestic sewage exception is not unlike that of the household waste

CONCLUSION APPENDIX

The judgment of the court of appeals should be affirmed. RELEVANT STATUTORY PROVISIONS

Respectfully submitted.

Section 3001(i) of the Resource Conservation and Recovery

Richard J. Lazarus* Act, 42 U.S.C. 6921(i), provides:

Washington University

School of Law (i) Clarification of household waste exclusion

St. Louis, MO 63130

Karen Florini (314) 935-6495 A resource recovery facility recovering energy from the

Environmental Defense mass burning of municipal solid waste shall not be deemed to

Fund R. Edward Wilhoite, Jr. be treating, storing, disposing of, or otherwise managing

1875 Connecticut, N.W. Lerner & Wilhoite hazardous wastes for the purposes of regulation under this

Suite 1016 1007 West Webster Ave. subchapter, if--

Washington, DC 20009 Chicago, IL 60614

(202) 387-3500 (312) 477-1364 (1) such facility--

Of Counsel Counsel for Respondents (A) receives and burns only--

(1) household waste (from single and

October 6, 1993 * Counsel of Record multiple dwellings, hotels, motels, and

other residential sources), and

(ii) solid waste from commercial or

industrial sources that does not contain

hazardous waste identified or listed under

this section, and

(B) does not accept hazardous wastes

identified or listed under this section, and

exclusion: to promote the operation of municipal waste treatment

facilities when doing so does not create unreasonable environmental (2) the owner or operator of such facility has

risks. In the context of domestic sewage, however, EPA has established contractual requirements or other appropriate

properly recognized the limits of that rationale. EPA has concluded notification or i tion procedures to assure that

that when the sludge resulting from that treatment facility is toxic, tj

meaning that it fails EPA's toxicity test, that waste must be disposed hazardous wastes are not received at or bu im such

of as a hazardous waste under RCRA Subtitle C. See 52 Fed. Reg. facility.

23478 (1987); see also 58 Fed. Reg. 9248, 9253 (1993). The domestic

sewage exception no longer applies. Of course, that is precisely why

the household waste exclusion should no longer apply to ash

resulting from the treatment of a mixture of household waste and

other wastes, when that ash is hazardous.

A-l

Sections 1004(6) & (7), 42 U.S.C. 6903(6) & (7) provide:

(6) The term “hazardous waste generation" means the act

or process of producing hazardous waste.

(7) The term "hazardous waste management" means the

systematic control of the collection, source separation,

storage, transportation, processing, treatment, recovery,

and disposal of hazardous wastes.

A-2

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