Amicus Curiae Brief — Chicago v. Environmental Defense Fund

No. 92-1639

In the Supreme Court of the United States

OCTOBER TERM, 1993

THE CITy OF CHICAGO, ET AL... PETITIONERS

VS.

ENVIRONMENTAL DEFENSE FUND, INC... ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

Drew S. Days, Ill

Solicitor General

MYLES E. FLINT

GERALD H. YAMADA Acting Assistant Attorney General

Acting General Counsel LAWRENCE G. WALLACI

LISA K. FRIEDMAN Deputy Solicitor General

Associate General Counsel preppy P. MINFAR

LAWRENCE E. STARFIELD Assistant to the Solicitor General

Assistant General Counsel py ayy ©. Sut TON

THOMAS H. BEISSWENGER M. ALIck THURSTON

Attorney Attorneys

Environmental Protection Department of Justice

Agency ; Washington, D.C. 20530

Washington, D.C. 20460 (202) 514-2217

BEST AVAILABLE COPY)s

QUESTION PRESENTED

Whether Section 3001(i) of the Resource Conservation

and Recovery Act of 1976, 42 U.S.C. 6921(i), exempts a

resource recovery facility’s municipal waste combustion

ash from regulation as a hazardous waste under Subtitle C

of that Act.

(I)

TABLE OF CONTENTS

Page

pueevent OF the United States .................... -

esi ccs ceseeceevens 2

I S

Argument:

EPA’s interpretation of Section 3001(i) is entitled

ec so cecccucvdevess eee y

A. Section 3001(i) is ambiguous with respect to

regulation of MWC ash................... y

B. EPA's interpretation of Section 3001{i) is

ce ceeeees 16

Ne ccc eedeecececees 28

TABLE OF AUTHORITIES

Cases:

American Hospital Ass'n vy. NLRB, 11S. Ct. 1839

ee i ci nancecesesecs 23

Bowen vy. Georgetown University Hospital, 488

rr . . wise eceeeces avn ee

Burlington Truck Lines, Inc. v. United States, 37\

cs occ eteccsceecees 25

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

Council, Inc., 467 U.S. 837 (1984) 2.0... 8, 11, 16, 17,

18, 20, 21, 22, 23, 28

City of Chicago v. Environmental Defense Fund,

a 8

Commodity Futures Trading Comm'n vy. Schor,

ns ccc cccccececece 20

Cottage Savings Ass'n ¥. Commissioner of Internal

Revenue, 111 S. Ct. 1803 (1991) 0.6... 20

Department of the Treasury v. FLRA, 494 U.S.

ES 17

(111)

IV

Cases — Continued:

Environmental Defense Fund vy. EPA, 852 F.2d

1316 (D.C. Cir. 1988), cert. denied, 489 U.S.

SOT Re ae ee ee

Environmental Defense Fund, Inc. v. Wheelabrator

Technologies, Inc., 725 &. Supp. 758 (S.D.N_Y.

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

See es ED oc Kk GRCER SN eabbaeteess 7,

FDIC \. Philadelphia Gear Corp., 476 U.S. 426

SEE i hrdoo ease ee ais ak be wn ka ano

Good Samaritan Hospital y. Shalala, 113 S. Ct.

EE V0.6 8 hae x00 445 Chee eKen 16, 17, 18,

International Ass'n of Bridge Workers, Local 3 \.

NLRB, 843 F.2d 770 (3d Cir.), cert. denied, 480

Os Re a ete eek cei a Se wae nen

Lorillard v. Pons, 434 U.S. 575 (1978)... 00.2...

Mead Corp. v. Tilley, 490 U.S. 714 (1989) 000...

\Vlesa berde Constr. Co. \. Northern Cal. District

Council of Laborers, 861 F.2d 1124 (9th Cir.

Dt ccheatounausannsscesadsecdneehestwwns

Motor Vehicle Mfrs. Ass'n vy. State Farm Mutual

Auto. Ins. Co., 463 U.S. 29 (1983) 20000... 23.

NLRB vy. Curtin Matheson Scientific, Inc., 494

SE, Fe EE 6 dua casachaseuasetuceetchuss

NLRB. lron Workers, 434.U.S. 335 (1978)...

NLRB vy. United Food & Commercial Workers

Union, Local 23, 484 U.S. 112 (1987). 0.2... ..

Paulev \. BethEnergyv Mines, Inc., (ANS. Ct. 2524

GE 5 0.0esberescdetateceseneavens 16, 17-18,

Pension Ben. Guar. Corp. ». LTV Corp., 496

Se ee EE foro es oe a ae ea

Permian Basin Area Rate Cases, 390 U.S. 747

MR ee Ab AP see Ree pe

Sierra Club vy. U.S. Environmental Protection

Agency, 992 F.2d 337 (D.C. Cir. 1993) ........

Page

14,

20-

”7

~—s

tv

Cases — Continued: Page

Sullivan v. Everhart, 494 U.S. 83 (1990) ......... 16, 18

Traynor v. Turnage, 485 U.S. 535 (1988) ......... 20

United States v. Alaska, 112 S. Ct. 1606(1992) .... 16, 17

United States v. Gaubert, 111 S. Ct. 1267 (1991) .. 27

United States v. Shimer, 367 U.S. 374 (1961)... .. 21

Statutes and regulations:

Clean Air Act Amendments of 1990, Pub. L. No.

i ah eesaeue 14

I a a awe 14

Hazardous and Solid Waste Amendments of 1984,

Pub. L. No. 98-616, 98 Stat. 3221 ............. 3

of Bo 8: ASR rrr

Resource Conservation and Recovery Act of 1976,

ee ee PS ogo cacncccavinsceevese 2

§ 1004(7), 42 U.S.C. 6903(7) ............... 20

§ 1004(34), 42 U.S.C. 6903(34) ............. 20

§§ 3001-3018, 42 U.S.C. 6921-6939 ......... 2

op 8 8 8 ol RR A eee P 2

Be OE al en passim

§ 3001(if2), 42 U.S.C. 692112)... 2 2... 10

en a ai a le oo 2

SD ooo sec teau cue ean 2

2 ee ek oe Shae 2

§ 4010(c), 42 U.S.C. 6949a(c) ... 2... ee, 25

iat 5

ee rk hs i a ore 11

40 C.F.R.:

es i a ee i de ae 25, 26

Pt. 261:

Section 261.4(b)(1) ......... 3, 4, 10, 19, 20, 21

A eee eer eed ee ee 2

i se aca St ie 19

Miscellaneous:

AWD Technologies, Municipal Waste Combus-

tion, Ash and Leachate Characterization: Mono-

fill— Fourth Year Study, Woodburn Monofill,

Woodburn, Oregon (March 1992) ............

Clark Byse, Judicial Review of Administrative

Interpretation of Statutes; An Analysis of

Chevron’s Step Two, 2 Administrative L.J. 255

th aan ie wed ath nawee he aeeeee oS

Characterization of Municipal Solid Waste in the

United States: 1992 Update (EPA July 1992)...

45 Fed. Reg. (1980):

PP cixbncectucctsusbhessexnsvasess

i, FMD oc cess ccccescccccocennas

St: cccdnauccsvassencosacesses Oy OMS

9° Serr rrr rr Tree late bene es

50 Fed. Reg. (1985):

UE bb eewcs ness cekcenasuveceseessess

ie bo freer ere re

DPM catch shnehes cecnscdsenevetesess

86 Fed. Reg. (1991):

EE cha es ood ecbans se eabeads eee tan

DD ovens ccvotbiccvsin because sveuy es

H.R. 424, 103d Cong., Ist Sess. (1993) ..........

H.R. 2017, 103d Cong., Ist Sess. (1993) .........

H.R. 2488, 103d Cong., Ist Sess. (1993) ...

S. Levy, Municipal Waste Combustion Inventory

CE, Pe GUE bccn sbetesesceveseensaee es

Page

Vil

Miscellaneous — Continued:

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

4255, and 4357 Before the Subcomm. on Trans-

portation, Tourism, and Hazardous Materials of

the House Comm. on Energy and Commerce,

Se Gs Ge EE wb o's es ue eeeséecas

Regulation of Municipal Solid Waste Incinerators:

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

Transportation and Hazardous Materials of the

House Comm. on Energy and Commerce, \0\st

Sed Sl es EE i cacecceneeuabes use hts

Resource Conservation and Recovery Act — Over-

sight: Hearings Before the Subcomm. on Haz-

ardous Wastes and Toxic Substances of the

Senate Comm. on Environment and Public

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

Results of U.S. EPA Research on Municipal Waste

Combustion, Otfice of Research & Develop-

ment, Cincinnati, Ohio (EPA March 1993,

DE c-tucucheskcconeeeu wk enee toe een east s

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

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

is s Oe

Page

13, 14

13-14

Jn the Supreme Court of the United States

OCTOBER TERM, 1993

No. 92-1639

TH! “ITY OF CHICAGO, ET AL., PETITIONERS

VS.

ENVIRONMENTAL DEFENSE FUND, INC., ET AI

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

The United States plays a leading role through the En-

vironmental Protection Agency (EPA) in implementing

and administering federal environmental laws, including

the Resource Conservation and Recovery Act of 1976, 42

U.S.C. 6901 et seq. EPA addressed the statutory question

at issue here through a directive from its prior Ad-

ministrator to the EPA Regional Administrators, and that

directive remains in effect.

STATEMENT

Petitioners City of Chicago and its mayor operate a

municipal incinerator that burns solid waste and recovers

energy, leaving a residue of municipal waste combustion

(1)

2

(MWC) ash that is deposited in a landfill. Respondents

Environmental Defense Fund, Inc., ef a/. (EDF) brought

this action against petitioners alleging ‘hat they were

violating provisions of the Resource Co iservation and

Recovery Act of 1976 (RCRA), 42 U.S.C. 6901 ef seq., by

failing to dispose of the MWC ash in accordance with the

hazardous waste management requirements of RCRA

Subtitle C, 42 U.S.C. 6921-6939. The United States

District Court for the Northern District of Illinois granted

Summary judgment for petitioners, ruling that RCRA Sec-

tion 3001(i), 42 U.S.C. 6921(i), exempts the ash residue

from Subtitle C regulation. See Pet. App. 22a-37a. A

divided court of appeals reversed. /d. at Sa-2la. This

Court vacated that judgment and remanded the case for

reconsideration in light of a directive that the Administra-

tor of the EPA had recently issued to the EPA Regional

Administrators. On remand, the court of appeals

reinstated its prior judgment. /d. at la-4a

1. RCRA is a comprehensive enviro: nental statute

that, among other things, empowers EPA to regulate

hazardous wastes from “cradle to grave.” Environmental

Defense Fund v. EPA, 852 F.2d 1316, 1318 (D.C. Cir.

1988), cert. denied, 489 U.S. 1011 (1989). Subtitle C of

RCRA requires EPA to identify and list hazardous wastes,

§ 3001, 42 U.S.C. 6921, and to promulgate standards

governing hazardous waste generators and transporters,

$§ 3002, 3003, 42 U.S.C. 6922, 6923, and owners and

operators of hazardous waste treatment, storage, and dis-

posal facilities, § 3004, 42 U.S.C. 6924. EPA has directed

hazardous waste generators to comply with handling,

recordkeeping, storage, and monitoring requirements

when they treat, store, or arrange for transportation or

disposal of hazardous waste. See 40 C.F.R. Pt. 262.

In 1980, EPA issued regulations, pursuant to Section

3001 of RCRA, identifying and listing certain solid wastes

3

as hazardous wastes. See 45 Fed. Reg. 33,084. Based on

the agency’s interpretation of Congress’s intent, EPA ex-

cluded various solid wastes that might otherwise be treated

as hazardous waste from regulation under Subtitle C. See

id. at 33,096-33,097. EPA specifically provided a “house-

hold waste” exclusion, stating in relevant part:

The following solid wastes are not hazardous

wastes:

(1) Household waste, including household waste

that has been collected, transported, stored, treated,

disposed, recovered (e.g., refuse-derived fuel) or re-

used. “Household waste” means any waste material

(including garbage, trash and sanitary wastes in septic

tanks) derived from households (including single and

multiple residences, hotels and motels).

Id. at 33,120 (codified as amended at 40 C.F.R.

261.4(b)(1) (1982)). EPA stated that the exclusion would

extend to waste residues remaining after treatment, such

as incinerator ash. 45 Fed. Reg. 33,099 (1980). See Pet.

App. 25a-26a.

Four years later, Congress enacted the Hazardous and

Solid Waste Amendments of 1984, Pub. L. No. 98-616, 98

Stat. 3221, which revised and supplemented RCRA in

various respects. That Act (§ 213, 98 Stat. 3241) added

Section 3001(i), entitled “Clarification of household waste

exclusion.” 42 U.S.C. 6921(i). Section 3001(i) states:

A resource recovery facility recovering energy from

the mass burning of municipal solid waste shall not be

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

wise managing hazardous wastes for the purposes of

regulation under this subchapter, if —

(1) such facility —

(A) receives and burns only —

4

(1) household waste (from single and

multiple dwellings, hotels, motels, and

other residential sources), and

(ii) solid waste from commercial or

industrial sources that does not contain

hazardous waste identified or listed

under this section, and

(B) does not accept hazardous wastes

identified or listed under this section, and

(2) the owner or operator of such facility has

established contractual requirements or other ap-

propriate notification or inspection procedures

to assure that hazardous wastes are not received

at or burned in such facility.

42 U.S.C. 6921(i). Shortly thereafter, EPA revised its

regulation containing the household waste exclusion. 50

Fed. Reg. 28,702 (1985). EPA retained its original regu-

latory language, but added the language of Section 3001(i)

virtually verbatim. 40 C.F.R. 261.4(b)(1). See Pet. App.

26a-27a.

*. Since 1971, petitioner City of Chicago has owned

and operated a resource recovery incinerator, the North-

west Waste-to-Energy Facility. The facility burns approxi-

mately 350,000 tons of solid waste each year, amounting

to about 14% of the City’s solid waste, and produces

energy that is used within the facility and is sold to other

companies. The City has disposed of the combustion resi-

due — 110,000 to 140,000 tons of MWC ash per year —at a

landfill in Three Oaks, Michigan. Prior to this suit, the

City, like many other municipalities, did not manage

MWC ash as a RCRA Subtitle C hazardous waste. Pet.

App. Sa-7a, 23a.'

' As of 1991, approximately 150 facilities incinerated municipal

solid waste in a resource recovery facility. S. Levy, Municipal Waste

5

In 1988, EDF filed a complaint against petitioners under

the citizen suit provisions of RCRA, § 7002, 42 U.S.C.

6972, alleging that petitioners were violating provisions of

RCRA and EPA’s RCRA regulations governing the

management of hazardous waste. According to EDF, the

MWC ash from the Northwest Waste-to-Energy Facility

contained sufficient levels of lead and cadmium to subject

the residue to regulation as a hazardous waste under

RCRA Subtitle C. Petitioners responded that RCRA Sec-

tion 3001(i) nevertheless excluded the MWC ash from Sub-

title C requirements. The parties filed cross-motions for

summary judgment contesting the application of Section

3001(i). Pet. App. Sa-7a, 22a-24a.

EDF claimed that although Section 3001(i) exempted

petitioners fror RCRA Subtitle C requirements related to

“treating, stot.ug, disposing of, or otherwise managing

hazardous wastes,” 42 U.S.C. 6921(i), it did not exempt

petitioners from Subtitle C requirements related to genera-

tion of a distinct waste product, the MWC ash. Petitioners

responded that Section 3001(i)’s reference to “disposing

of, or otherwise managing hazardous wastes” exempted

from Subtitle C requirements the entire process of inciner-

ating the waste in a resource recovery facility, including

management of the ash residue. Pet. App. 7a, 24a,

27a-28a.

The district court agreed with petitioners that RCRA

Section 3001(i) exempts MWC ash produced at resource

recovery facilities from regulation as hazardous waste.

Pet. App. 7a, 24a-32a. The court denied petitioners’ mo-

Combustion Inventory 1 (EPA July 1992). In 1990, those facilities

burned in aggregate about 29.7 million tons of municipal solid waste

out of an estimated 195.7 million tons generated. Characterization of

Municipal Solid Waste in the United States: 1992 Update 3-2 (EPA

July 1992). See also Pet. 3-4.

6

tion for summary judgment, however, and allowed EDF

to engage in discovery on whether the Chicago facility ade-

quately met Section 3001(i)’s provisions prohibiting the

facility from accepting commercial and industrial hazar-

dous wastes. Pet. App. 7a, 32a-33a. EDF subsequently

stipulated that it would not contest the adequacy of the

facility’s compliance with those prohibitions and that it

would not oppose petitioners’ renewed motion for sum-

mary judgment, which the court granted. See id. at 7a-8a,

34a-37a.

3. The court of appeals reversed. As a preliminary

matter, the court rejected petitioners’ claim that inter-

vening legislation had rendered the matter moot. Pet.

App. 8a-9a. Turning to the merits, the court observed that

petitioners and EDF both relied on the “plain words of

section 3001(i)” and that “EPA’s interpretation and the

legislative history of the statute do little to resolve this

stand-off.” /d. at 10a-lla. See id. at 10a-18a (analyzing

those sources). The court ultimately chose to rely on “what

the statute actually says.” /d. at 18a.

The court reasoned that Section 3001(i) “mentions ‘the

treating, storing, disposing of or otherwise managing’ of

the household and commercial waste, but fails to include

among these activities generating a different waste prod-

uct entirely.” Pet. App. 18a. The court examined the

Statutory definitions of the quoted terms and ruled that

they “exclude ‘generation,’ which is separately defined as

‘the act or process of producing hazardous waste.’ 42

U.S.C. § 6903(6).” Jd. at 19a. It concluded:

There is no overlap whatsoever, then, between haz-

ardous waste “management” and hazardous waste

“generation.” It follows, therefore, that if the

language of the exclusion is limited to “management”

activities of resource recovery facilities, “generating”

activities are subject to regulation.

-

Ibid. The court accordingly held that “ash generated from

the incinerators of municipal resource recovery facilities is

subject to regulation as a hazardous waste under Subtitle

C of RCRA.” 7d. at 20a.

Judge Ripple dissented. He stated that the court should

affirm the judgment for the reasons set forth in Environ-

mental Defense Fund, Inc. v. Wheelabrator Technologies,

Inc., 725 F. Supp. 758 (S.D.N.Y. 1989), aff’d, 931 F.2d

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

held that MWC ash from resource recovery facilities is ex-

empt from regulation under Subtitle C. Pet. App. 21a.?

4. The City of Chicago petitioned for a writ of cer-

tiorari to resolve the conflict between the decisions of the

Second and Seventh Circuits. Pet. in No. 91-1328. EDF

agreed that the conflict should be resolved by this Court

and did not oppose the petition. Resp. Br. in No. 91-1328.

The Court thereafter issued an order inviting the Solicitor

General to present the views of the United States. On

September 18, 1992, while that invitation to the Solicitor

General was outstanding, EPA Administrator William

Reilly issued a memorandum to EPA Regional Admini-

Strators setting out EPA’s interpretation of Section

3001(i). Pet. App. 4la-49a. The Reilly memorandum

directed the Regional Administrators to treat MWC ash as

exempt from hazardous waste regulation under Subtitle C

of RCRA. I/bid. Thereafter, the Solicitor General sug-

gested that the Court grant the petition, vacate the deci-

sion and remand the case to the Seventh Circuit for further

consideration in light of EPA’s directive. U.S. Amicus Br.

in No. 91-1328. This Court followed that course and

? Because of the apparent conflict with the Wheelabrator decision,

the court of appeals’ opinion was circulated among all active circuit

judges prior to release. No judge recommended rehearing en banc. See

Pet. App. Sa n.*

a

8

returned the case to the Seventh Circuit. City of Chicago

v. Environmental Defense Fund, 113 S. Ct. 486 (1992).

5. After requesting and receiving statements of posi-

tions from petitioners and EDF, the court of appeals re-

instated its previous decision. The majority held that the

Reilly memorandum did not affect its analysis, because

the statute’s plain language was dispositive. Pet. App. 2a.

Judge Ripple again dissented. He stated that an agency has

an obligation to review and insure the reasonableness of its

interpretations On a continuing basis. Judge Ripple con-

cluded that Administrator Reilly’s review of the “ad-

mittedly ambiguous issue” and his reassessrent of the

agency’s “early pronouncements” were responsible agency

actions and deserved “deferential review.” Jd. at 4a.

SUMMARY OF ARGUMENT

The United States submits that Section 3001(i) of RCRA

is ambiguous with respect to regulation of MWC ash.

Although petitioners and EDF both invoke the “plain

language” of Section 3001(i), the statute does not speak

directly to the issue presented here. Indeed, EPA, which is

charged with administering RCRA, has grappled with that

issue since the statute’s enactment and has repeatedly

urged Congress to clarify the matter. At the same time, all

of the courts that have addressed the issue (except the

divided panel below) have acknowledged that the statute is

ambiguous. In these circumstances, the Court should give

deference to “a reasonable interpretation made by the ad-

ministrator of an agency.” Chevron U.S.A. Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837,

844 (1984).

Administrator Reilly formally articulated EPA’s inter-

pretation in his 1992 directive to the Regional Administra-

9

tors, and that directive remains in force. The Court should

therefore defer to the reasoned analysis contained therein.

The directive sets out an interpretation that is consistent

with the text and legislative history of Section 3001(i), that

reconciles the statute and the agency’s regulatory scheme,

and that takes into account important policy and technical

considerations that are within EPA’s special expertise.

Deference is no less appropriate merely because the Ad-

ministrator’s construction is not the only reasonable inter-

pretation, it has evolved over time, and it could be revised

again in light of further technological or policy con-

siderations.

ARGUMENT

EPA’S INTERPRETATION OF SECTION 3001(i)

IS ENTITLED TO DEFERENCE

A. Section 3001(i) Is Ambiguous With Respect To Regulation

Of MWC Ash.

1. Petitioners and EDF each have contended through-

out this litigation that the plain language of Section 3001(i)

supports their respective positions. See Pet. App. 10a-1 1a.

They are able to rely on the same text to support contra-

dictory conclusions, because the statutory language is am-

biguous with respect to the specific question at issue. Sec-

tion 3001(i) states in relevant part:

A resource recovery facility recovering energy from

the mass burning of municipal solid waste shall not be

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

wise managing hazardous wastes for the purposes of

regulation under this subchapter if [certain conditions

are satisfied].

42 U.S.C. 6921(i). That provision, which is captioned as a

“clarification” of EPA’s pre-existing household waste ex-

10

clusion, is amenable to at least two different construc-

tions.

On the one hand, the provision can plausibly be inter-

preted to mean that if a facility is one that “recover[s]

energy from the mass burning of municipal solid waste”

and it satisfies the prescribed conditions, then the facility

as a whole is entitled to a regulatory exemption with

respect to any activity that, in the absence of the exemp-

tion, could constitute “treating, storing, disposing of, or

otherwise managing hazardous wastes.” 42 U.S.C. 6921(i).

Under that construction, EPA’s household waste exclu-

sion, set out at 40 C.F.R. 261.4(b)(1), would continue to

apply to the incineration residues, notwithstanding the

facility’s commingling of “household” and non-hazardous

“commercial or industrial” waste. The facility would enjoy

an exemption from RCRA Subtitle C regulation for ac-

tions taken in “treating, storing, disposing of, or otherwise

managing” both the incoming waste streams and the

MWC ash, which would continue to be subject to the

household waste exclusion even after leaving the facility.

On the other hand, Section 3001(i) can be construed in a

more restrictive sense to mean that the discrete aspects of

the facility’s energy recovery process specifically refer-

enced in the statute—treatment, storage, disposal, and

other management activities—do not include a non-

referenced activity — such as the “generation” of hazardous

waste. The facility would enjoy an exemption from RCRA

Subtitle C regulation when “treating, storing, disposing

of, or otherwise managing” any hazardous waste products

that are present in the incoming waste streams, despite

contractual controls established by the owner/operator of

the facility. See 42 U.S.C. 6921(i)(2). But the facility

would be subject to regulation under RCRA Subtitle C if

the incineration process generates a new product —

MWC ash—that qualifies as a hazardous waste.

2. Although one may debate the relative merits of the

competing constructions, both are plausible and consistent

with the statutory text. At bottom, “Congress has not

directly addressed the precise question at issue” — whether

the household waste exclusion, as clarified by Section

3001(i), applies to MWC ash. Chevron U.S.C. Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837,

842 (1984). Indeed, the ambiguity in Section 3001(i) of

RCRA is not unlike the one that this Court encountered in

Chevron, where the question was whether the Clean Air

Act’s provisions regulating new or modified major sta-

tionary sources, 42 U.S.C. 7502(b)(6), should be applied

on a plantwide or a component-by-component basis. See

467 U.S. at 839-840. As in Chevron, EPA has considered

the matter “not in a sterile textual vacuum, but in the con-

text of implementing policy decisions in a technical and

complex arena.” /d. at 863. And as in Chevron, EPA’s in-

terpretation has consequently evolved over time.

When EPA promulgated its 1980 household waste ex-

clusion, it clearly envisioned that the regulatory exclusion

would exempt incineration residue from Subtitle C regula-

tion. EPA stated in the preamble to that regulation that it

was excluding the entire household waste stream from

regulation, observing:

Since household waste is excluded in all phases of its

. management, residues remaining after treatment

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

to regulation as hazardous waste. * * *

45 Fed. Reg. 33,099 (1980). EPA explained that such

wastes, however, “must be transported, stored, treated

and disposed of in accord with applicable State and

federal requirements concerning management of solid

waste (including any requirements specified in regulations

under Subtitle D of RCRA).” Jbid.

12

Five years later, when EPA amended the household

waste exclusion in response to Congress’s enactment of

Section 3001(i), EPA expressed doubt whether MWC ash

should be excluded. EPA stated in the preamble to the

amended regulation:

The statute is silent as to whether hazardous

residues from burning combined household and non-

household, non-hazardous waste are hazardous

waste. These residues would be hazardous wastes

under present EPA regulations if they exhibited a

characteristic [of hazardous waste]. The legislative

history does not directly address this question,

although the Senate report can be read as enunciating

a general policy of nonregulation of these resource

recovery facilities if they carefully scrutinize their in-

coming wastes. On the other hand, residues from bur-

ning could, in theory, exhibit a characteristic of

hazardous waste even if no hazardous wastes are

burned, for example, if toxic metals become concen-

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

incoming wastes would not assure non-hazardousness

of the residues.

50 Fed. Reg. 28,725-28,726 (1985). The agency continued:

EPA believes that the principal purpose of section

3001 [i] was to prevent resource recovery facilities that

may inadvertently burn hazardous waste, despite

good faith efforts to avoid such a result, from becom-

ing subject to the Subtitle C regulations. EPA does

not see in this provision an intent to exempt the

regulation of incinerator ash from the burning of

non-hazardous waste in resource recovery facilities if

the ash routinely exhibits a characteristic of hazard-

ous waste.

Id. at 28,726. See Pet. App. 30a n.4. Although those pre-

amble passages are somewhat equivocal, they have been

13

widely viewed as indicating that if MWC ash “exhibits a

characteristic of hazardous waste,” ibid., the ash is subject

to RCRA’s Subtitle C requirements. °

Since 1985, EPA officials have suggested that, in that

respect, the analysis contained in the 1985 regulatory pre-

amble may be incorrect and have urged Congress to clarify

its intent. Congress subsequently included a provision in

’ EPA also stated, however, that the Hazardous and Solid Waste

Amendments do not “impose new regulatory burdens on resource

recovery facilities that burn household and other non-hazardous

waste, and the Agency has no plans to impose additional responsi-

bilities on these facilities.” 50 Fed. Reg. 28,726 (1985). EPA deter-

mined that “any future additional regulation of their residues would

have to await consideration of the important technical and policy

issues that would be posed in the event serious questions arose about

the residues.” /bid.

* In 1987, EPA’s Assistant Administrator for the Office of Solid

Waste and Emergency Response stated to a Senate subcommittee that

“[t}he Agency has reexamined that [1985] interpretation and now con-

cludes that it may have been in error. The Agency believes that the

language and legislative history of Section 300i(i) were probably in-

tended to exclude these ash residues from regulation under Subtitle

C.” Resource Conservation and Recovery Act — Oversight: Hearings

Before the Subcomm. on Hazardous Wastes and Toxic Substances of

the Senate Comm. on Environment and Public Works, \00th Cong.,

Ist Sess. 427-428 (1987). See Pet. App. I4a-iSa. In 1988, the Ad-

ministrator testified to a House subcommtittee that “there is ambiguity

within the law and I think the law should be clarified,” but he also in-

dicated that the Agency would not take action to clarify its interpreta-

tion of the law out of deference to Congress, which was at the time

considering legislation to amend the provision. 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). In

1989, EPA’s Director of the Office of Solid Waste stated to a House

subcommittee that EPA continued to follow the 1985 interpretation,

but she noted that there is “substantial controversy surrounding that

interpretation,” “the law is ambiguous given it is silent with regard to

treatment of ash under [Section 3001(i)],” and “it needs to be clari-

14

the Clean Air Act Amendments of 1990, Pub. L. No.

101-549, 104 Stat. 2399, stating:

For a period of 2 years [until November 15, 1992]

* * * ash from solid waste incineration units burning

municipal waste shall not be regulated by the Admini-

strator of the Environmental Protection Agency pur-

suant to section 3001 of the Solid Waste Disposal Act.

$ 306, 104 Stat. 2584. Since enactment of that “mora-

torium” provision, however, Congress has taken no action

to clarify whether it intends MWC ash to be exempt per-

manently from Subtitle C regulation, and has, as a body,

remained silent on this controversy.°

In light of the considerable uncertainty surrounding the

issue, the imminent termination of the two-year mora-

fied.” Regulation of Municipal Solid Waste Incinerators: Hearings on

H.R. 2162 Before the Subcomm. on Transportation and Hazardous

Materials of the House Comm. on Energy and Commerce, \0\st

Cong., Ist Sess. 33 (1989). See Pet. App. 13a-l6a. See also

HW heelabrator, 725 F. Supp. at 767-768.

* In the past several years, Congress has considered various pro-

posals that would clarify how MWC ash should be regulated. In 1988,

Congress considered legislation that would have required specific

standards for facilities disposing of MWC ash. See 53 Fed. Reg.

33,314, 33,328 (1988). In 1988, a bill was introduced that would have

allowed disposal of MWC ash in certain RCRA Subtitle D landfills

which met additional requirements (the so-called “D Plus” approach).

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

4357 Before the Subcomm. on Transportation, Tourism, and Hazar-

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

Cong., 2d Sess. 72 (1988). See also Pet. App. 12a-13a. In the session

that ended in 1992, Congress considered a bill that would have amend-

ed RCRA Subtitle D to establish a separate regulatory framework for

MWC ash. See S. Rep. No. 301, 102d Cong., 2d Sess. 56-60 (1992).

Various pertinent provisions have also been introduced in the current

session and are currently pending before Congress. See H.R. 424,

103d Cong., Ist Sess. (1993); H.R. 2017, 103d Cong., Ist Sess. (1993);

H.R. 2488, 103d Cong., Ist Sess. (1993).

15

\orium, and Congress’s failure to take legislative action,

EPA issued a policy directive to clarify the agency’s inter-

pretation of Section 3001(i). See Pet. App. 41a-49a. Ad-

ministrator Reilly’s September 1992 memorandum, which

was issued to all EPA Regional Administrators and made

publicly »vailable, announced EPA’s decision under Sec-

tion 3001(i) of RCRA “to treat ash generated from the

combustion of nonhazardous municipal solid waste at

resource recovery facilities * * * as exempt from hazard-

ous waste regulation under RCRA Subtitle C.” /d. at 41a.

That decision “supersede[d] the Agency’s earlier view of

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

ous waste regulation.” /d. at 42a. The current Administra-

tor has not revised or revoked that directive, and it there-

fore remains in effect and continues to bind the Regional

Administrators.

As EPA’s experience demonstrates, Section 3001(i) is

amenable to more than one interpretation. Prior to the

court of appeals’ decision in this case, the courts that had

examined the issue had concluded —in accord witli the ex-

pert agency charged with administering the statute —that

the statutory language is ambiguous as to the issue pre-

sented here. See Pet. App. 24a; Wheelabrator, 725 F.

Supp. at 764, aff'd, 931 F.2d at 212. See also Pet. App. 4a

(Ripple, J., dissenting). The Seventh Circuit is the only

court to conclude that the statutory text is dispositive, and

that divided court’s reliance on the purported “plain

language” seemingly arises from the court’s own perplexity

in attempting to resolve the issue, rather than from any

compelling force in the statute’s words. Indeed, the court

conducted a preliminary analysis of the statute, its enact-

ment, and EPA’s implementation and stated:

What we have to work with here is a statute subject to

varying interpretations, a foggy legislative history, and

a waffling administrative agency. Where do we turn?

16

See Pet. App. 16a. The court then returned to the statu-

tory text and concluded, on second thought, that it should

adopt EDF’s “plain language” argument, relying in part on

“RCRA’s policy.” /d. at 18a-20a. But significantly, the

court simplified its task by ignoring the alternative “plain

language” argument — viz., petitioners are exempt because

the facility enjoys an exemption from RCRA Subtitle C

regulation for actions taken in “treating, storing, dispos-

ing of, or otherwise managing” both the incoming waste

streams and the outgoing MWC ash. 42 U.S.C. 6921(i).

At bottom, the adversaries in this case can each invoke

“plain language” in support of their competing interpreta-

tions, but neither can definitively refute the other party’s

construction. The court of appeals chose one “plain

language” argument in preference to another, but the fact

remains that Congress has not “directly spoken to” the

precise question presented in this case. Chevron, 467 U.S.

at 842. The statute ultimately is ambiguous with respect to

the issue presented here. Compare Rust v. Sullivan, 111 S.

Ct. 1759, 1767 (1991).

B. EPA's Interpretation Of Section 3001(i) Is Reasonable

1. This Court’s decision in Chevron supplies the

fundamental principle for resolving this case: A court in-

terpreting an ambiguous provision of a statute ad-

ministered by an agency must give deference to the

agency’s interpretation if that interpretation is

“reasonable.” Chevron, 467 U.S. at 844. See, e.g., Good

Samaritan Hospital v. Shalala, 113 S. Ct. 2151, 2159

(1993); United States v. Alaska, 112 S. Ct. 1606, 1610

(1992); Pauley v. BethEnergy Mines, Inc., 111 S. Ct. 2524,

2534 (1991); Rust v. Sullivan, 111 S. Ct. at 1767; Pension

Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 647-648

(1990); Sullivan v. Everhart, 494 U.S. 83, 88-89 (1990);

Mead Corp. v. Tilley, 490 U.S. 714, 722 (1989).

17

As this Court has explained, “when an agency is charged

with administering a statute, part of the authority it re-

ceives is the power to give reasonable content to the

statute’s textual ambiguities.” Department of the Treasury

v. FLRA, 494 U.S. 922, 933 (1990). “That is a task infused

with judgment and discretion, requring the ‘accommoda-

tion of conflicting policies that were committed to the

agency’s care.’” Ibid. The principle of deference to ad-

ministrative interpretations

has been consistently followed by this Court when-

ever a decision as to the meaning or reach of a statute

has involved reconciling conflicting policies, and a

full understanding of the force of the statutory policy

in the given situation has depended upon more than

ordinary knowledge respecting the matters subjected

to agency regulations.

Chevron, 467 U.S. at 844 (citations omitted).

Administrator Reilly’s directive that Section 3001(i) ex-

empts MWC ash from RCRA Subtitle C regulation is the

expert agency’s currently operative interpretation of an

ambiguous provision of a complex statute. That directive

attempts to reconcile the text of Section 3001(i), its

legislative history, EPA’s pre-existing regulatory program,

and the underlying policies of RCRA, which include the

goals of protecting the environment and promoting

resource recovery from nonhazardous solid waste. See

Pet. App. 42a-49a. Under Chevron, the proper inquiry

now is whether the agency’s interpretation “is based on a

permissible construction of the statute.” 467 U.S. at

842-843. See Good Samaritan Hospital, 113 S. Ct. at 2156;

Alaska, 112 S. Ct. at 1610; Rust, 111 S. Ct. at 1759; LTV

Corp., 496 U.S. at 648; Mead Corp., 490 U.S. at 722.

To answer that inquiry, a court should examine whether

the agency’s interpretation is “reasonable,” Pauley, 111

18

S. Ct. at 2537, in the sense that it is “rational and con-

sistent with the statute.” Everhart, 494 U.S. at 89, quoting

NLRB vy. United Food & Commercial Workers Union,

Local 23, 484 U.S. 112, 123 (1987). As this Court recently

noted, “where the agency’s interpretation of a statute is at

least as plausible as competing ones, there is little, if any

reason not to defer to its construction.” Good Samaritan

Hospital, 113 S. Ct. at 2161. Indeed, that approach not

only gives proper respect to the agency’s congressionally

assigned function, but it also assigns the courts to their

proper role by directing disputes over policy to the

politically accountable branches of government. See

Chevron, 467 U.S. at 864-865. That approach is particu-

larly appropriate here, where the statutory provision

builds upon a pre-existing agency regulation.

2. EPA’s interpretation of Section 3001(i) is manifest-

ly rational. As the Reilly memorandum explains, Congress

enacted Section 3001(i) to clarify EPA’s 1980 household

waste exclusion, which exempted househcid waste from

Subtitle C regulation “in all phases of its management, [in-

cluding] residues remaining after treatment (e.g., incinera-

tion, thermal treatment).” 45 Fed. Reg. 33,099 (1980). See

Pet. App. 42a-43a. Section 3001(i) incontestably clarified

that when a resource recovery facility processes household

waste in combination with nonhazardous commercial and

industrial waste and in compliance with prescribed re-

quirements, the facility “shall not be deemed to be

treating, storing, disposing of, or otherwise managing

hazardous wastes.” 42 U.S.C. 6921(i). See Pet. App.

43a-44a. It is not unreasonable to conclude that this “clari-

fication” retains the basic thrust of EPA’s pre-existing

regulatory provision and continues to exempt the com-

bined household and nonhazardous commercial and in-

dustrial waste from regulation “in all phases of its manage-

19

ment,” including disposal of the resulting incineration

residues.°®

As the former Administrator’s memorandum explains,

his interpretation is entirely consistent with the statutory

text. See Pet. App. 42a-43a. Indeed, Section 3001(i)’s ex-

press provision that a qualifying resource recovery facility

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

or Otherwise managing hazardous wastes” reasonably sug-

gests that EPA’s household waste exclusion applies to all

facets of the facility’s operations, including incineration,

pre- and post-incineration storage, and disposal of

residues. The fact that Section 3001(i) fails to state that the

facility shall not be deemed to be “generating” hazardous

wastes (see Pet. App. 19a-20a) does not undermine that

conclusion. The absence of that term may simply reflect

Congress’s understanding that resource recovery opera-

tions involving conversion of solid waste to energy are

comprehensively described by the collective terms Con-

* It is helpful to understand how EPA’s RCRA regulations operate

in this setting. Under those regulations, a person who generates solid

waste “must determine if the waste is hazardous” by first “deter-

min{ing) if the waste is excluded from regulation under 40 CFR

261.4.” See 40 C.F.R. 262.11. A facility that incinerates waste, reduc-

ing it to ash, would find that “[hJousehold waste, including household

waste that has been * * * treated [e.g., reduced to ash]” is excluded

from regulation. 40 C.F.R. 261.4(b)(i). The question would arise,

however, whether the household waste exclusion continues to apply

when “household waste” is incinerated in combination with nonhaz-

ardous “commercial or industrial” waste. Section 3001(i) of

RCRA—which EPA codified virtually verbatim into 40 C.F.R.

261.4(b)(1)—clarifies that point. The municipal facility “shall not be

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

hazardous wastes” if the prescribed conditions are met. See 40 C.F.R.

261.4(b)(1). Thus, the household waste exclusion continues to apply,

and the resulting MWC ash remains exempt from hazardous waste

regulation.

20

gress used. See RCRA § 1004(7) and (34), 42 U.S.C.

6903(7) and (34) (defining hazardous waste management

and treatment).’ At most, Congress’s silence on that point

highlights the fact that Congress has “left a gap for the

agency to fill.” Chevron, 467 U.S. at 843-844. See Pet.

App. 44a n.2.

The Reilly memorandum’s interpretation of Section

3001(i) is especially plausible when the statute is viewed in

its legal context. When Congress acted, it presumably was

aware that EPA had interpreted the household waste ex-

clusion to apply to such waste “in all phases of its manage-

ment,” including disposal of incineration residues. See 45

Fed. Reg. 33,099 (1980).* Congress did not question or

overrule that interpretation when it clarified that the

household waste exclusion would apply to a resource re-

covery facility that burns commingled wastes, and it is

therefore reasonable for the Administrator to conclude

that Congress ratified that interpretation. See Cottage

Savings Ass’n v. Commissioner of Internal Revenue, 111

S. Ct. 1503, 1508 (1991); Traynor v. Turnage, 485 U.S.

535, 545-546 (1988); Commodity Futures Trading

Comm’n v. Schor, 478 U.S. 833, 845-846 (1986); FDIC v.

’ Significantly, Section 3001(i) employs terms similar to those that

EPA had employed in its prior regulatory exclusion. Compare RCRA

§ 3001(i), 42 U.S.C. 6921(i) (facility shall not be deemed to be

“treating, storing, disposing of, or otherwise managing hazardous

wastes”) with 40 C.F.R. 261.4(b)(1) (1982) (excluding household

waste, including waste “that has been collected, transported, stored,

treated, disposed, recovered (e.g., refuse-derived fuel) or reused”) and

45 Fed. Reg. 33,099 (1980) (excluding household waste “in all phases

of its management”).

* Cf. Lorillard v. Pons, 434 U.S. 575, 581 (1978) (“where, as here,

Congress adopts a new law incorporating sections of a prior law, Con-

gress normally can be presumed to have had knowledge of the inter-

pretation given to the incorporated law, at least insofar as it affects

the new statute”).

|

Philadelphia Gear Corp., 476 U.S. 426 (1985). And to the

extent the legislative history is relevant, it suggests that

Congress intended to retain EPA’s interpretation. S. Rep.

No. 284, 98th Cong., Ist Sess. 61 (1983). See Pet. App.

44a-46a & nn.2-3.

The Reilly memorandum also is consistent with the ob-

jectives Congress sought to achieve in enacting Section

3001(i)— protecting the environment and promoting re-

source recovery from nonhazardous solid waste. See Pet.

App. 46a-48a. As in Chevron, “Congress intended to ac-

commodate both interests, but did not do so itself on the

level of specificity presented by th[is] case[ ].” 467 U.S. at

865. Based on EPA’s scientific judgment and the safe-

guards the agency has instituted in implementing other

provisions of RCRA, Administrator Reilly determined

that those objectives “are best served by exempting MWC

ash from hazardous waste regulation.” Pet. App. 46a.

That determination rests on “significant expertise” and

“entail[s] the exercise of judgment grounded in policy con-

cerns.” Pauley, 111 S. Ct. at 2534. “In those circum-

stances, courts appropriately defer to the agency entrusted

by Congress to make such policy determinations.” /bid.

See Chevron, 467 U.S. at 844-845, quoting United States

v. Shimer, 367 U.S. 374, 382 (1961).°

* EDF has mistakenly suggested that this approach is “unworkable

and makes no sense,” because Section 3001(i) does not provide a

separate exemption for downstream parties that transport or dispose

of the MWC ash. See EDF Br. on Petition 12 n.8, 16 n.10. Under the

Administrator’s interpretation, the household waste exclusion con-

tinues to apply to a qualifying facility’s disposal products after they

leave the facility. This approach is consistent with the basic thrust of

the household waste exclusion, which Section 3001(i) was intended

merely to clarify, as applying to exempted waste “in all phases of its

22

3. As this Court’s decision in Chevron made clear,

deference is appropriate even if the agency has changed its

interpretation over time, provided that the agency supplies

a reasoned basis for the change. “The fact that the agency

has from time to time changed its interpretation * * *

does not * * * lead us to conclude that no deference

should be accorded the agency’s interpretation of the

Statute.” Chevron, 467 U.S. at 863. An agency’s consistent

adherence to a longstanding interpretation may provide an

additional reason for deference, but it is not a sine qua

non for respecting the agency’s views. Compare, e.g.,

Pauley, 111 S. Ct. at 2575 (citing a consistent agency prac-

tice), with Chevron, 467 U.S. at 865 (citing other factors

that support deference).

For example, it would provide no reason for a court to

reject an agency’s changed interpretation if practical ex-

perience or technological advances indicate that a revised

interpretation is more consonant with congressional in-

tent. Indeed, this Court recently ruled that an agency ad-

ministrator is not “estopped from changing a view she

believes to have been grounded upon a mistaken legal in-

terpretation.” Good Samaritan Hospital, 113 S. Ct. at

2161. As the Court explained:

“{Ajii administrative agency is not disqualified from

changing its mind; and when it does, the courts still sit

in review of the administrative decision and should

not approach the statutory construction issue de novo

and without regard to the administrative understand-

ing of the statutes.”

management,” including disposal of the resulting incineration

residues. See note 6, supra and accompanying text. Thus, a down-

Stream transporter or disposer may continue to rely on the household

waste exclusion when handling MWC ash.

23

lbid., quoting NLRB vy. Iron Workers, 434 U.S. 335, 351

(1978) (other citations omitted). To be sure, the Court sug-

gested that the weight that should be given to the agency’s

changed views “will depend on the facts of individual

cases.” 113 S. Ct. at 2161. But this Court has repeatedly

accorded deference where, as here, the agency provides a

reasoned justification for its changed position. E.¢., Rust,

111 S. Ct. at 1769; American Hospital Ass’n vy. NLRB, 111

S. Ct. 1539, 1546 (1991); Robertson v. Methow Valley

Citizens Council, 490 U.S. 332, 335-336 (1989).

EPA has consistently recognized that Section 3001(i) is

silent or ambiguous with respect to the issue presented in

this case. See pp. 11-15 supra. The agency’s contempo-

raneous interpretation of the 1985 rules codifying Section

3001(i) was replete with doubt as to Congress’s intent. See

50 Fed. Reg. 28,725-28,726 (1985). EPA has always

acknowedged that a statutory gap exists that must be

filled, and it has searched for the best means to do so. The

fact that the agency’s understanding has evolved over time

is nO reason to deny deference to the current interpretation

of the law in favor of the agency’s earlier, less seasoned ex-

plication.

Indeed, EPA should not be discouraged from continu-

ing to adjust its position as circumstances warrant. An

agency should revise its views as necessary to reflect new

learning that better informs the agency’s interpretation of

statutory provisions. As the Court has explained, “[a]n ini-

tial agency interpretation is not instantly carved in stone.”

Chevron, 467 U.S. at 863. Rather, the agency “must con-

sider varying interpretations and the wisdom of its policy

on a continuing basis.” Jd. at 863-864. Accord Rust. 111 S.

Ct. at 1769; NLRB v. Curtin Matheson Scientific, Inc.,

494 U.S. 775 (1990); Motor Vehicle Mfrs. Ass’n v. State

Farm Mutual Auto. Ins. Co., 463 U.S. 29, 42 (1983),

24

citing Permian Basin Area Rate Cases, 390 U.S. 747, 784

(1968).'°

To be sure, an agency changing its course—even if it

does not involve “rescinding a rule”—should “supply a

reasoned analysis for the change.” Motor Vehicle Mfrs.

Ass'n, 463 U.S. at 42. In accordance with that principle,

Administrator Reilly provided a reasoned explanation for

the new policy. His directive to the EPA Regional Ad-

ministrators explained that the interpretation is consistent

with the text and legislative history of Section 3001(i). See

Pet. App. 42a-43a. In addition, the directive addressed im-

portant policy considerations that are within EPA’s exper-

tise. Id. at 46a-49a.

The directive explained that resource recovery from

municipal solid waste “is an important component of

EPA’s integrated waste management approach” that can

“reduce the volume of waste that requires disposal” and

may result in “recovering significant amounts of energy.”

Pet. App. 47a-48a. The directive additionally noted that

EPA had recently promulgated new criteria for municipal

‘© Thus, the courts of appeals have quite correctly held that a ruling

by this Court upholding an agency’s interpretation as reasonable does

not preclude the agency from subsequently changing its interpretation

in light of additional knowledge or experience. See /nternational Ass'n

of Bridge Workers, Local 3 v. NLRB, 843 F.2d 770, 776 (3d Cir.),

cert. denied, 488 U.S. 889 (1988); cf. Mesa Verde Constr. Co. v.

Northern Cal. District Council of Laborers, 861 F.2d 1124, 1134-1136

(9th Cir. 1988). That approach is sound as an institutional matter. The

expert agency that administers the statute is best equipped to revisit

and fine tune reguiatory programs on a nationwide basis in light of

current knowledge, relieving Congress and the judiciary of the need

repeatedly to reassess the details of very complicated technical or

policy-laden matters. See Clark Byse, Judicial Review of Ad-

ministrative Interpretation of Statutes: An Analysis of Chevron’s Step

Two, 2 Administrative L.J. 255, 257-260 (1988).

a

25

solid waste landfills. 40 C.F.R. Pt. 258.'' Those criteria

contain many requirements that enhance the ability of

regulated landfills to contain and manage MWC ash safely:

The Part 258 criteria impose requirements on

municipal landfills that far exceed those previously

imposed, including more stringent location restric-

tions, facility design and operating criteria, ground-

water monitoring requirements, corrective action re-

quirements, financial assurance requirements, and

closure and post-closure requirements.

Pet. App. 46a-47a. The knowledge that EPA gained

through promulgation of the Part 258 criteria and the

changed circumstances led it to reevaluate previous policy

concerns and to conclude that “disposal of MWC ash in

municipal landfills subject to the Part 258 criteria will be

protective of human heath and the environment.” /d. at

47a & n.5.

Thus, Administrator Reilly reviewed the pertinent law,

evaluated the relevant policy considerations, applied the

available data, and articulated a satisfactory explanation

for his decision, providing a “ ‘rational connection be-

tween the facts found and the choice made.’ ” Motor Vehi-

cle Mfrs. Ass’n, 463 U.S. at 43, quoting Burlington Truck

Lines, Inc. v. United States, 371 U.S. 156, 168 (1962). His

analysis finds additional support in the rulemaking record

‘' EPA promulgated the Part 258 criteria in response to Section

4010(c) of RCRA, which directs EPA to reissue landfill criteria “for

facilities that may receive hazardous household wastes or hazardous

wastes from small quantity generators under [Section 3001(d)].” 42

U.S.C. 6949a(c). See Sierra Club vy. U.S. Environmental Protection

Agency, 992 F.2d 337 (D.C. Cir. 1993). The new Part 258 regulations

require landfills to be designed and operated to meet criteria

“necessary to protect human health and the environment,” taking into

consideration “the ‘practicable capability’ of [such] facilities.” See 56

Fed. Reg. 50,983 (1991).

26

of the Part 258 criteria, which details the scientific,

Statistical, and statutory analyses supporting promuiga-

tion of the new landfill requirements. See 40 C.F.R. Pt.

258, 56 Fed. Reg. 50,978 (1991).'?

4. Administrator Reilly’s directive has not been re-

pealed or superseded, and it therefore continues to state

EPA’s policy unless and until the agency revisits the issue.

Nevertheless, EDF urged and the court of appeals con-

cluded that the directive is not entitled to deference. They

have given two reasons—apart from their mistaken re-

liance on the purportedly “plain” language of the statute,

see pp. 9-16, supra—for disregarding the outstanding

agency interpretation. Neither is persuasive.

First, EDF has contended that Administrator Reilly’s

directive is not entitled to deference, because the directive

is comparable to an agency’s “convenient litigating posi-

tion.” Resp. Br. on Remand 6 n.2, quoting Bowen v.

Georgetown University Hospital, 488 U.S. 204, 212

(1988). See also EDF Br. on Petition 16. T'.at contention

is manifestly wrong. Administrator Reilly’s directive is a

formal interpretation by an agency head that establishes

current agency policy, has binding effect on subordinate

agency officials, and is therefore a legitimate source for

‘? EPA has conducted additional studies on MWC leachate, using

natural and synthetic lining materials commonly employed in the con-

struction of municipal solid waste landfill liners. Those studies in-

dicate that “with proper engineering considerations, carefully selected

materials can be expected to perform as designed.” Results of U.S.

EPA Research on Municipal Waste Combustion, Office of Research

and Development, Cincinnati, Ohio (EPA March 1993, Draft). In ad-

dition, EPA is conducting ongoing, in situ studies of leachate from

monofills receiving MWC ash. Those studies reveal concentrations of

relevant metals within allowable limits. See AWD Technologies,

Municipal Waste Combustion, Ash and Leachate Characterization:

Monofill— Fourth Year Study, Woodburn Monofill, Woodburn,

Oregon (March 1992).

27

Chevron deference. See Bowen, 488 U.S. at 212. Cf.

Alaska, 112 S. Ct. at 1618-1619, citing United States v.

Gaubert, 111 S. Ct. 1267, 1274 (1991) (agencies may estab-

lish policy “through administration of agency

programs”).'*

Second, the court of appeals concluded that Admini-

strator Reilly’s directive was not entitled to deference be-

cause EPA had changed its interpretation not just once,

but several times. See Pet. App. 2a (“EPA has changed its

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

normally accorded an agency’s interpretation of the

statute it administers.”); see also id. at 16a (referring to

“[t]he see-sawing statements from the EPA”). That con-

clusion is erroneous as a factual matter. EPA has articu-

lated a formal agency position interpreting Section 3001(i)

only twice —in the preamble to the 1985 regulations and in

Administrator Reilly’s 1992 memorandum. Thus, the

agency has changed its position on the statute’s meaning

only once.'4

'* EDF cannot accurately compare the Administrator’s directive to

a mere pro hac vice argument from agency counsel that has no in-

dependent force. Indeed, EDF's citation to Bowen is particularly in-

apt, because EPA is not a party to this suit and has participated as

amicus curiae at this Court’s invitation. The fact that Administrator

Reilly issued his directive while this Court’s invitation was pending

provides no reason for denying deference. There is nothing inappro-

priate in an agency’s providing formal regulatory guidance concerning

issues that have given rise to litigation. Moreover, Administrator Reil-

ly had an independent reason for providing clarification, because the

congressional moratorium on agency regulation of MWC ash was

scheduled to expire on November 15, 1992. See p. 14, supra.

'* Statements that agency officials made to congressional commit-

tees advising the legislators of the agency’s concerns and requesting

clarification of Section 3001(i)’s ambiguous statutory language, see

p. 13, supra, obviously do not constitute formal changes in agency

policy.

28

But more fundamentally, a court is not entitled to ig-

nore an administrative agency’s interpretation simply be-

cause the agency has changed its mind—even if it has

changed its mind several times. Indeed, this Court’s deci-

sion in Chevron explicitly addresses that question:

The fact that the agency has from time to time

changed its interpretation * * * does not, as respond-

ents argue, lead us to conclude that no deference

should be accorded the agency’s interpretation of the

Statute.

467 U.S. at 863. The sole question is whether the Admini-

Strator has “amply justified his change of interpretation

with a ‘reasoned analysis.’ ” Rust, 111 S. Ct. at 1769. In

this case, Administrator Reilly provided just such an

analysis, and that currently outstanding interpretation is

entitled to deference.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

Drew S. DAYS, Ill

Solicitor General

GERALD H. YAMADA MYLES E. FLINT

Acting General Counsel Acting Assistant Attorney General

LISA K. FRIEDMAN LAWRENCE G. WALLACE

Associate General Counsel Deputy Solicitor General

LAWRENCE E. STARFIELD JEFFREY P. MINEAR

Assistant General Counsel Assistant to the Solicitor General

THOMAS H. BEISSWENGER DAVID C. SHILTON

Attorney M. ALICE THURSTON

Environmental Protection Attorneys

Agency

AUGUST 1993

US GOVERNMENT PRINTING OFFICE 1993— 342.479/60336