Amicus Curiae Brief — Chicago v. Environmental Defense Fund

i iin ee

No. 92-1639

IN THE

Suprenve Court of the Wuited States

OCTOBER TERM, 1993

—

THE CITY OF CHICAGO, et al..

. Petitioners,

ENVIRONMENTAL DEFENSE FUND, et ai.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

BRIEF AMICI CURIAE OF BARRON COUNTY, WISCONSIN,

BROWARD COUNTY, FLORIDA, CITY OF AKRON, OHIO,

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

CITY OF HARRISBURG, PENNSYLVANIA, CITY OF

INDIANAPOLIS, INDIANA, CITY OF TAMPA, FLORIDA,

CONCORD REGIONAL SOLID WASTE/RESOURCE RECOVERY

COOPERATIVE, COUNTY BOARD OF ARLINGTON, VIRGINIA,

DAVIS COUNTY SOLID WASTE MANAGEMENT AND ENERGY

RECOVERY SPECIAL SERVICE DISTRICT, DELAWARE

COUNTY SOLID WASTE AUTHORITY, FAIRFAX COUNTY,

VIRGINIA, GREATER DETROIT RESOURCE RECOVERY

AUTHORITY, JOINT BOARD OF OVERSIGHT FOR THE

HAMPTON/NASA/USAF REFUSE-FIRED STEAM

GENERATING FACILITY, METROPOLITAN GOVERNMENT

OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE,

MINNESOTA RESOURCE RECOVERY ASSOCIATION,

(Additional Amici listed on inside cover)

IN SUPPORT OF PETITIONERS

Scott M. DUBOFF *

ANDREAS H. LESKOVSEK

WINSTON & STRAWN

1400 L Street, N.W.

Washington, D.C. 20005-3502

(202) 371-5704

Counsel for Amici Curiae

Barron County, Wisconsin,

* Counsel of Record et al.

(Additional Counsel Listed on Inside Cover)

WILSON - Eres PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001

© BEST AVAILABLE COPY

MUNICIPAL WASTE MANAGEMENT ASSOCIATION, NEW

HANOVER COUNTY, NORTH CAROLINA, NORTHEAST

SOLID WASTE COMMITTEE, RESOURCE AUTHORITY

IN SUMNER COUNTY, TENNESSEE, SOLID WASTE

ASSOCIATION OF NORTH AMERICA, SOLID WASTE

AUTHORITY OF CENTRAL OHIO, SOLID WASTE DISPOSAL

AUTHORITY OF THE CITY OF HUNTSVILLE, ALABAMA,

SOUTHEASTERN PUBLIC SERVICE AUTHORITY OF

VIRGINIA, ST. CROIX COUNTY, WISCONSIN, TOWN OF

HEMPSTEAD, NEW YORK, TULSA AUTHORITY FOR

RECOVERY OF ENERGY AND CITY OF TULSA, OKLAHOMA,

AND YORK COUNTY SOLID WASTE

AND REFUSE AUTHORITY

JOHN M. MUENCH

Corporation Counsel

330 East LaSalle Avenue

Barron, Wisconsin 54812

Counsel for Barron County,

Wisconsin

NOEL PFEFFER

Office of the County Attorney

115 S. Andrews Avenue

Suite 423

Fort Lauderdale, Florida 33301

Counsel for Broward County,

Florida

PHILLIP G. SUNDERLAND

City Attorney

301 King Street

Suite 1300

Alexandria, Virginia 22314

Counsel for City of Alexandria,

Virginia

MAX ROTHAL

Director of Law

161 South High Street

Suite 202

Akron, Ohio 44308

Counsel for City of Akron, Ohio

JOHN R. KLAUS

City Attorney

515 Clark Avenue

Ames, Iowa 50010

Counsel for City of Ames, lowa

PAMELA K. AKIN

City Attorney

Old City Hall

315 East Kennedy Blvd.

5th floor

Tampa, Florida 33602

Counsel for City of Tampa,

Florida

JAMES L. MurpPuy III

Director of Law

STEPHEN O. NUNN

Metropolitan Attorney

Metropolitan Courthouse

Room 204

Nashville, Tennessee 37201

Counsel for the Metropolitan

Government of Nashville and

Davidson County, Tennessee

CYNTHEA L. PERRY

Special Counsel

Office of the County Attorney

1 Courthouse Plaza

Suite 403

2100 Clarendon Boulevard

Arlington, Virginia 22201

Counsel for County Board of

Arlington, Virginia

HOWARD J. WEIN

Klett, Lieber, Schorling

& Rooney

One Oxford Centre—40th floor

Pittsburgh, PA 15219-6498

Counsel for City of Harrishurg,

Pennsylvania

CHARLES H. YOUNGER

100 Jefferson Street South

Huntsville, Alabama 35804

Counsel for Solid Waste

Disposal Authority of the

City of Huntsville, Alabama

SHEILA M. O’BRYAN

Assistant Corporation Counsel

1601 City-County Building

Indianapolis, Indiana 46204

Counsel for City of Indianapolis,

Indiana

JOHN D. PirRIcH

Honigman Miller Schwartz

& Cohn

222 Washington Square North

Suite 400

Lansing, Michigan 48933-1800

Counsel for Greater Detroit

Resource Recovery Authority

DAVID P. BoBZIEN

County Attorney

12000 Government Center

Parkway

Suite 549

Fairfax, Virginia 22035-0064

Counsel for Fairfax County,

Virginia

PAUL BURTON

City Attorney

22 Lincoln Street

Hampton, Virginia 23669

Counsel for Joint Board of

Oversight for the Hampton/

NASA/USAF Refuse-Fired

Steam Generating Facility

WANDA M. COPLEY

County Attorney

820 Chestnut Street

Room 309

Wilmington, NC 28401

Counsel for New Hanover

County, North Carolina

FELSHAW KING

King & King

P.O. Box 320

330 North Main Street

Kaysville, Utah 84037

Mary ANNE Woop

Wood Spendlove & Quinn

500 Eagle Gate Tower

60 East South Temple

Salt Lake City, Utah 84111

Counsel for Davis County Solid

Waste Management and

Eneray Recovery Special

Service District

MICHAEL F_X. GILLIN

230 North Monroe Street

Media, Pennsylvania 19063

Counsel for Delaware County

Solid Waste Authority

Perrr M. HUBER

Willcox & Savage, P.C.

1800 Nationsbank Center

One Commercial Place

Norfolk, Virginia 23510-2197

Counsel for Southeastern Public

Service Authority of Virginia

GReGoRY A. TIMMERMAN

Corporation Counsel

St. Croix County Courthouse

911 Fourth Street

Hudson, Wisconsin 54016

Counsel for St. Croix County,

Wisconsin

Rutu C. BALKIN

Office of the Presiding

Supervisor

Town Hall Plaza

Hempstead, New York 11550

Covnsel for Town of

Hemnstead, New York

Davin L. PAULING

City Attorney

PATRICK T. BOULDEN

Assistant City Attorney

City Hall Room 316

200 Civic Center

Tulsa, Oklahoma 74103

Counsel for Tulsa Authority for

Recovery of Energy and

City of Tulsa, Oklahoma

RUTH ELLEN FITCH

RALPH A. CHILD

Palmer & Dodge

One Beacon Street

Boston, Massachusetts 02108

Counsel for Northeast Solid

Waste Committee

Barry S. SHANOFF

Knopf & Brown

1050 17th Street, N.W.

Suite 1200

Washington, D.C. 20036

Counsel for Solid Waste

Association of North America

TABLE OF CONTENTS

TABLE OF AUTHORITIES

EE sntttcinsinmeninianatin

eee eee eee eee

I. CONSISTENT WITH THE OBJECTIVES AND

POLICIES OF RCRA, SECTION 3001(i) EX-

EMPTS RESOURCE RECOVERY FACILITY

ASH RESIDUE FROM HAZARDOUS WASTE

REGULATION .........

A. The Plain Language And Legislative Intent

Of RCRA Section 3001(i) Exempt Resource

Recovery Facility Ash Residue From Regu-

lation As A Hazardous Waste

B. The Only Interpretation Of RCRA Section

3001(i) That Serves RCRA’s Objectives

And Policies Is That Ash Produced At A

Resource Recovery

Facility Is Exempt From

Hazardous Waste Regulation ...........

Il. THE EPA ADMINISTRATOR’S INTERPRE-

TATION OF RCRA SECTION 3001(i) THAT

RESOURCE RECOVERY FACILITY ASH IS

EXEMPT FROM HAZARDOUS WASTE REG-

ULATION IS ENTITLED TO DEFERENCE..

CONCLUSION ........................

20

23

ii

TABLE OF AUTHORITIES

CASES Page

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

fense Council, Inc., 467 U.S. 837 (1984) ............ 20, 22

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

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

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

1908) (om TERMARE) ......--2..22nncc.e.cccceeesercecsvesescnceverses passim

Environmental Defense Fund, Inc. v. Wheelabrator

Technologies, Inc., 931 F.2d 211 (2d Cir. 1991),

aff’'g 725 F. Supp. 758 (S.D.N.Y. 1989), cert.

denied, 112 S. Ct. 453 (1991) ..........------------1---0---- 8,12

Miles v. Apex Marine Corp., 498 U.S. 19 (1990) .... 9

Motor Vehicle Manufacturers Association of the

United States, Inc. v. State Farm Mutual Auto-

mobile Insurance Co., 463 U.S. 29 (1983) -......... 22

Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41

ee aaah mannan 8

Rust v. Sullivan, 111 S. Ct. 1759 (1991) -................ 22, 23

STATUTES AND REGULATIONS

42 U.S.C. $$ 6901 (b) (1) and (8) -.................. MBean e 13

eee 12

POST El !, penitent hes | 5

CO passim

42 U.S.C. $8 G021-GOSD ...........-.222--0000---000eeeenncccceeseeneee 2

PR k Ce | | 13

42 U.S.C. $8 6941-649 ...............-22022-02-000000--s-cerereeceeeses 5

Fla. Admin. Code Ann. r. 17-702.570 _........................ 19

Fla. Admin. Code Ann. r. 17-702.600 ............-........... 19

EEE 14-15

Mass. Regs. Code title 310, § 19.119 —................. 19

Mich. Comp. Laws § 299.432 (4) .............--..-.---. aioe 14

N.H. Code Admin. R. 149-M: 1-a ...........................------ 14

N.Y. Comp. Codes R. & Regs. title 6, § 360-3. 5(h).. 18-19

Pa. Stat. Ann. title 35, § 6018.102(2) ee... 15

Tenn. Stat. Ann. § 68-31-602 (b) _..........---...-------.----- 14

ON 15

I dre I! 5

Ee 9,12

40 C.F.R. part 258 _.......... sntenenehetencebmmsesminreanenaneennt _ 19

iii

TABLE OF AUTHORITIES—Continued

LEGISLATIVE AND ADMINISTRATIVE

MATERIALS

Page

S. Rep. No. 284, 98th Cong., 2d Sess. (1983) ......... 10, 11, 13

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

aa ee

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

50 Fed. Reg. 28702 (July 15,1985) 000000

54 Fed. Reg. 52209 (December 20, 1989) 000.

Regulation of Municipal Solid Waste Incinerators:

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

Transportation and Hazardous Materials of the

House Comm. on Energy and Commerce, 101st

i Bee es CIID cccicennsecctetcheccincdeecsteteietatnastpaincions

Resource Conservation and Recovery Act—Over-

sight: Hearings Before the Subcomm. on Haz-

ardous Wastes and Toxic Substances of the Sen-

ate Comm. on Environment and Public Works,

100th Cong., 1st Sess. (1987) ...............................

Memorandum from William K. Reilly, Administra-

tor, U.S. EPA, to All Regional Administrators,

Subject: Exemption for Municipal Waste Com-

bustion Ash From Hazardous Waste Regulation

Under RCRA Section 3001(i) (September 18,

19, 21

21

IEEE <cticnineyrimmeenemanennnisitinnmumamenennniel 16, 20, 22

MISCELLANEOUS

Commonwealth of Massachusetts, Department of

Environmental Protection, Toward a System of

Integrated Solid Waste Management/The Com-

monwealth Master Plan (June 1990) .......00.0.....

Goodwin, Richard W., Defending the Character of

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

ff

Gruber, William, TSD Summary 19938, EI Digest

Ff ff)

Kiser, Jonathan V.L., A Comprehensive Report on

the Status of Municipal Waste Combustion,

Waste Age 109 (November 1990) —.......0.0000.0........

14

18

19

iv

TABLE OF AUTHORITIES—Continued

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

tion in North America: 1992 Update, Waste

Age 26 (November 1992) .....................................

Michigan Department of Natural Resources, Mich-

igan Solid Waste Policy (1988) ..00000000000000000cccce

Municipality of Anchorage, Alaska, Paying for

Federal Environmental Mandates: A Looming

Crisis for Cities and Counties (January 1993)...

National Solid Wastes Management Association,

1990 Landfill Tipping Fee Survey (1991) ...........

Ohio Municipal League, Ohio Metropolitan Area

Cost Report for Environmental Compliance

I a a

Smith, Jeffrey D., Hazardous Waste Landfill Facil-

ity Information, EI Digest 24 (March 1992)...

State of Florida, Division of Administrative Hear-

ings, Application for Power Plant Certification

of Lee County Solid Waste Resource Recovery

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

proving Certification (June 19, 1992) and Rec-

ommended Order (December 9, 1991) .................

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

FF, a eens SE onereteto

U.S. Environmental Protection Agency, Character-

ization of Municipal Solid Waste in the United

States: 1992 Update, EPA/530-R-92-019 (July

IPITIE? cinsaiiceantersenncinnasiiidiicdnnsiinesdndasinsiidaeiamatibesbibiniianioes 13,

U.S. Environmental Protection Agency, Character-

ization of Municipal Solid Waste in the United

States: 1990 Update, EPA/530-SW-90-042

I aa eel a lai

U.S. Environmental Protection Agency, Character-

ization of Municipal Waste Combustion Ash, Ash

Extracts and Leachates, EPA/530-SW-90-29A

a ee nae

U.S. Environmental Protection Agency, The Solid

Waste Dilemma: An Agenda for Action, EPA/

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

Page

6

14, 15

17

16

17

19

18

15

15, 16

13

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

No. 92-1639

THE CITY OF CHICAGO, ef al.,

» Petitioners,

ENVIRONMENTAL DEFENSE FUND, et ai.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

BRIEF AMICI CURIAE OF BARRON COUNTY, WISCONSIN,

BROWARD COUNTY, FLORIDA, CITY OF AKRON, OHIO,

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

CITY OF HARRISBURG, PENNSYLVANIA, CITY OF

INDIANAPOLIS, INDIANA, CITY OF TAMPA, FLORIDA,

CONCORD REGIONAL SOLID WASTE/RESOURCE RECOVERY

COOPERATIVE, COUNTY BOARD OF ARLINGTON, VIRGINIA,

DAVIS COUNTY SOLID WASTE MANAGEMENT AND ENERGY

RECOVERY SPECIAL SERVICE DISTRICT, DELAWARE

COUNTY SOLID WASTE AUTHORITY, FAIRFAX COUNTY,

VIRGINIA, GREATER DETROIT RESOURCE RECOVERY

AUTHORITY, JOINT BOARD OF OVERSIGHT FOR THE

HAMPTON /NASA/USAF REFUSE-FIRED STEAM

GENERATING FACILITY, METROPOLITAN GOVERNMENT

OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE,

MINNESOTA RESOURCE RECOVERY ASSOCIATION,

MUNICIPAL WASTE MANAGEMENT ASSOCIATION, NEW

HANOVER COUNTY, NORTH CAROLINA, NORTHEAST

SOLID WASTE COMMITTEE, RESOURCE AUTHORITY

IN SUMNER COUNTY, TENNESSEE, SOLID WASTE

ASSOCIATION OF NORTH AMERICA, SOLID WASTE

AUTHORITY OF CENTRAL OHIO, SOLID WASTE DISPOSAL

AUTHORITY OF THE CITY OF HUNTSVILLE, ALABAMA,

SOUTHEASTERN PUBLIC SERVICE AUTHORITY OF

VIRGINIA, ST. CROIX COUNTY, WISCONSIN, TOWN OF

HEMPSTEAD, NEW YORK, TULSA AUTHORITY FOR

RECOVERY OF ENERGY AND CITY OF TULSA, OKLAHOMA,

AND YORK COUNTY SOLID WASTE AND REFUSE

AUTHORITY IN SUPPORT OF PETITIONERS

2

This brief amici curiae is submitted in support of peti-

tioners City of Chicago, ef al. Amici believe that the

decision below, Environmental Defense Fund, Inc. v. City

of Chicago, 985 F.2d 303 (7th Cir. 1993), which con-

cluded that ash residue from the operation of waste-to-

energy, resource recovery facilities is subject to the

hazardous waste management standards of Subtitle C of

the Resource Conservation and Recovery Act (“RCRA”),

42 U.S.C. $$ 6921-6939 (1988), contradicts the plain

meaning and legislative intent of section 3001(i) of

RCRA, 42 U.S.C. § 6921(i), and is antithetical to the

objectives and policies of RCRA as a whole.’ As such,

the decision undermines the carefully designed solid waste

management plans of local governments throughout the

United States and poses a serious obstacle to sound man-

agement of the Nation’s growing municipal solid waste

stream.

The petitioners and respondents have consented to the

filing of this brief and their letters of consent have been

filed with the Clerk of the Court.

STATEMENT OF INTEREST OF AMICI

Amici include cities, counties, local government agen-

cies and organizations who have primary responsibility

for managing the growing solid waste crisis that confronts

our Nation. See U.S. Environmental Protection Agency,

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

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

“Agenda For Action”). Meeting that responsibility has

required amici and their constituents to balance carefully

all of the public health, environmental and economic con-

cerns involved in managing the municipal waste stream.

1 The decision of the Seventh Circuit was entered following this

Court’s order vacating the initial court of appeals’ decision in this

matter. Environmental Defense Fund, Inc. v. City of Chicago, 948

F.2d 345 (7th Cir. 1991), vacated, 113 S. Ct. 486 (1992) (Circuit

Judge Ripple dissented in both instances).

3

That is the context in which amici have focused on the

development of resource recovery facilities as a very im-

portant solid waste management tool.

In some instances, amici both own and operate re-

source recovery facilities. Other amici own resource re-

covery facilities that are operated by private vendors.

Still others have entered long-term contracts with pri-

vately owned and operated resource recovery facilities.

More specifically, amici include a number of cities and

counties (Akron, Ohio; Alexandria, Virginia: Ames,

Iowa; Arlington. Virginia; Barron County, Wisconsin;

Broward County, Florida; Fairfax County, Virginia;

Harrisburg, Pennsylvania; Hempstead, New York; In-

dianapolis, Indiana; Nashville, Tennessee; New Hanover

County, North Carolina: St. Croix County, Wisconsin;

and Tampa, Florida). Other amici are local government

agencies and special authorities (Concord Regional Solid

Waste Resource Recovery Cooperative; Davis County

Solid Waste Management and Energy Recovery Special

Service District (Utah); Delaware County Solid Waste

Authority (Pennsylvania); Greater Detroit Resource Re-

covery Authority; Joint Board of Oversight, Hampton/

NASA USAF Refuse-Fired Steam Generating Facility

(Virginia); Resource Authority in Sumner County, Ten-

nessee: Solid Waste Authority of Central Ohio; Solid

Waste Disposal Authority of the City of Huntsville, Ala-

bama: Southeastern Public Service Authority of Virginia;

Tulsa Authority for Recovery of Energy and City of

Tulsa, Oklahoma; York County Solid Waste and Refuse

Authority (Pennsylvania); and the Northeast Solid Waste

Committee (Massachusetts) ).

2The Southeastern Public Service Authority of Virginia con-

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

Suffolk and Virginia Beach, and the counties of Isle of Wight and

Southhampton. The Northeast Solid Waste Committee is estab-

lished under Massachusetts law as a corporate entity performing

governmental functions concerning waste management on behalf

of the following Massachusetts communities: Acton, Andover,

4

Amici also include national and regional organizations

concerned with solid waste management. Amicus Munici-

pal Waste Management Association (MWMA) is a na-

tional membership association of solid waste professionals

who are responsible for comprehensive solid waste man-

agement systems within local government. Formed in

1982 to address our cities’ municipal solid. waste manage-

ment needs (MWMaA is affiliated with The United States

Conference of Mayors), the MWMA brings together

local governments and other organizations with a com-

mon interest in municipal solid waste management

through reduction, recovery, reuse and recycling of ma-

terials and energy from the waste stream. Amicus Solid

Waste Association of North America (SWANA) is a non-

profit educational organization serving individuals and

communities that manage and operate municipal solid

waste management systems. SWANA’s 5,000 members

are primarily municipal, county and regional public offi-

cials who are responsible for municipal solid waste man-

agement systems, but also include private sector com-

panies that provide equipment and consulting services in

the field of municipal solid waste management. Another

of the amici, the Minnesota Resource Recovery Associa-

tion, is an association consisting primarily of public en-

tities working with the private sector in the development,

Arlington, Bedford, Belmont, Boxborough, Burlington, Carlisle,

Dracut, Hamilton, Lexington, Lincoln, Manchester, North Andover,

North Reading, Peabody, Tewksbury, Watertown, Wenham, West-

ford, West Newbury, Wilmington and Winchester. The Concord

Regional Solid Waste/Resource Recovery Cooperative is a non-

profit cooperative corporation formed for the purpose of providing

municipal solid waste management for the following New Hampshire

communities: Allenstown, Andover, Belmont, Boscawen, Bow,

Bradford, Bristol, Canterbury, Concord, Deering, Dunbarton,

Franklin, Gilford, Gilmanton, Henniker, Hill, Hillsborough, Hop-

kinton, Laconia, Loudon, Northfield, Pembroke, Salisbury, Tilton,

Warner, Weare and Webster.

5

ownership and operation of resource recovery facilities

and other types of waste management facilities.*

Resource recovery facilities are key components of the

integrated waste management plans that amici and many

other local governments throughout the United States are

pursuing (integrated waste management means the com-

plementary use of several waste management methods—

source reduction, reuse and recycling, waste combustion

with energy recovery and landfilling—to handle waste in

an environmentally sound and economical manner).

Agenda for Action at 16. Resource recovery facilities use

municipal solid waste as fuel to produce steam and elec-

tricity. See 42 U.S.C. § 6903(24).* These environmen-

tally sound facilities also produce ash residue as a result

of the combustion process, and manage the ash as non-

hazardous waste consistent with the requirements of Sub-

title D of RCRA, 42 U.S.C. §§ 6941-6949, and related

state laws.

The implications of the court of appeals’ decision that

such ash is instead governed by RCRA’s hazardous waste

management standards are severe. The resource recovery

facilities that amici represent produce thousands of tons

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

On a composite basis the 142 resource recovery facilities

3The Minnesota Resource Recovery Association represents

waste-to-energy facilities serving the Minnesota counties of Anoka,

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

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

Olmsted, Ottertail, Polk, Pope, Ramsey, Sherburne, Stearns, Stev-

ens, Todd, Traverse, Wadena, Washington and Wilkin, and the

Minnesota cities of Red Wing and Fergus Falls. Other members

of the Association are: Winona and Dakota Counties, Northern

States Power Company, United Power Association, Quadrant

Company and Richards Asphalt.

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

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

hazardous) waste from commercial, institutional and industrial

sources. 40 C.F.R. § 241.101 (k).

6

now operating in the United States produce approxi-

mately 8.5 million tons of ash annually. See Jonathan

V.L. Kiser, Municipal Waste Combustion in North

America: 1992 Update, Waste Age 30, Figure 2 (No-

vember 1992) (ash tonnage calculated based on data

presented). The decision below raises serious financial

implications for managing this ash as hazardous waste

and undermines the solid waste management plans of

amici and many other communities throughout the United

States that have turned to resource recovery as an en-

vironmentally sound strategy for municipal solid waste

management.

SUMMARY OF ARGUMENT

The Resource Conservation and Recovery Act ex-

plicitly encourages the development of resource recovery

facilities as an important means for reducing both our

Nation’s reliance on diminishing fossil fuel resources and

the burden of disposing ever-increasing volumes of mu-

nicipal solid waste. Consistent with those statutory ob-

jectives, RCRA section 3001(i) further encourages the

development of resource recovery facilities by exempting

from hazardous waste regulation the ash produced by

such facilities. Specifically, RCRA section 3001(1i) pro-

vides, in pertinent part, that a resource recovery facility

burning municipal solid waste “shall not be deemed to be

treating, storing, disposing of, or otherwise managing

hazardous wastes.” This statutory provision originated

from EPA’s explanation of the “household waste exclu-

sion” which provides that household waste is exempt from

regulation as a hazardous waste under RCRA “in all

phases of its management”, including the ash resulting

from the combustion of municipal solid waste (emphasis

added). Repeating the terminology used by EPA to de-

fine the scope of the “household waste exclusion”, RCRA

section 3001(i) codified the “household waste exclusion”

as applied to resource recovery facility ash by the sec-

tion’s express use of the term “otherwise managing”. That

7

result is confirmed by the legislative history of section

3001 (i).

The contrary decision of the court of appeals—based

solely on the absence of the word “generation” from the

list of resource recovery facility activities exempt from

hazardous waste regulation—ignores the plain language

and legislative intent of section 3001(i) and contravenes

the explicit objectives of RCRA to promote the deyelop-

ment of environmentally beneficial resource recovery fa-

cilities. Moreover, the court of appeals improperly de-

clined to defer to the EPA Administrator’s reasonable

interpretation of RCRA section 3001(i), which con-

cludes that ash from resource recovery facilities is exempt

from RCRA’s hazardous waste regulations. The court of

appeals’ decision poses severe consequences for local gov-

ernment. The decision undermines local solid waste man-

agement plans that are carefully designed to balance

public health, environmental, and economic concerns,

threatens the financial viability of most, if not all, re-

source recovery facilities due to the high cost of manag-

ing ash as a hazardous waste, and encourages environ-

mentally inferior methods of solid waste disposal.

8

ARGUMENT

I. CONSISTENT WITH THE OBJECTIVES AND POL-

ICIES OF RCRA, SECTION 3001(i) EXEMPTS RE-

SOURCE RECOVERY FACILITY ASH RESIDUE

FROM HAZARDOUS WASTE REGULATION

As often recognized by this Court, the meaning of a

statute is determined by the particular language at issue

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

object and policy. F.g., Pilot Life Ins. Co. v. Dedeaux,

481 U.S. 41, 51 (1987). Section 3001(i) of RCRA, the

statutory provision at issue here, states in relevant part

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 regula-

tion under this subchapter” (section 3001(i) is repro-

duced in the Appendix to this brief). Because the word

“generation” is not included in the phrase “treating, stor-

ing, disposing of, or otherwise managing”, the Seventh

Circuit concluded that the ash residue of a resource re-

covery facility is subject to regulation as hazardous waste

under RCRA. That narrow reading of section 3001(i)

ignores the fundamental tenet of statutory construction

that words have meaning only in context and is incom-

patible with the solid waste management policies and ob-

jectives of RCRA.®

A. The Plain Language And Legislative Intent Of

RCRA Section 3001(i) Exempt Resource Recovery

Facility Ash Residue From Regulation As A Haz-

ardous Waste

The genesis of RCRA section 3001(i), as well as the

context for interpreting its meaning, lies in EPA’s “house-

5 The only other circuit to interpret RCRA section 3001(i) con-

cluded that the statute exempts ash residue from regulation as a

hazardous waste. Environmental Defense Fund, Inc. v. Wheela-

brator Technologies, Inc., 931 F.2d 211 (2d Cir. 1991), aff’g 725

F. Supp. 758 (S.D.N.Y. 1989), cert. denied, 112 S. Ct. 453 (1991).

9

hold waste exclusion”. Adopted in 1980 as part of

EPA’s regulations governing RCRA’s hazardous waste

management program, the household waste exclusion im-

plemented congressional intent to exclude waste streams

produced at the household level from hazardous waste

management. See 45 Fed. Reg. 33084, 33099 (May 19,

1980) (quoting S. Rep. No. 988, 94th Cong., 2d Sess.

16 (1976)) (RCRA’s hazardous waste management pro-

gram “is not to be used to control the disposal of sub-

stances used in households or to extend control over gen-

eral municipal wastes based on the presence of such sub-

stances”). In the preamble accompanying promulgation

of the household waste exclusion, EPA explained that

“fs]ince household waste is excluded in all phases of its

management, residues remaining after treatment (e.g.,

incineration, thermal treatment) are not subject to regu-

lation as hazardous waste.” 45 Fed. Reg. at 33099 (em-

phasis added). Importantly, EPA emphasized that in-

cinerator ash was not subject to hazardous waste regula-

tion because the exclusion applies to “all phases of [the]

management” of household waste, including ash residue

after treatment, such as incineration.

Congress is presumed to know an agency's interpreta-

tion of a law pertinent to legislation Congress is enacting,

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

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

the “Clarification of the household waste exclusion”, the

® The “household waste exclusion” provides as follows:

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 reused. “House-

hold 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. )

40 C.F.R. § 261.4(b) (codified as amended) .

10

regulatory status of MSW ash was clear: ash remaining

after incineration of household waste was not subject to

RCRA Subtitle C hazardous waste regulation because the

household waste exclusion already encompassed “all

phases of [the] management” of household waste. See

City of Chicago, 948 F.2d at 349 (EPA’s 1980 preamble

“most definitely exempted ash from regulation as a haz-

ardous waste”). The focus of Congress’ “clarification” in

1984 was whether EPA’s 1980 regulation limiting the

exclusion only to household waste—as opposed to includ-

ing waste from non-household sources that contribute to

the municipal waste stream (e.g., small commercial and

industrial establishments, schools, etc.)—-was consistent

with Congress’ intent. As explained in the Senate Report

that accompanied the 1984 legislation:

Resource recovery facilities often take in such

“household wastes” mixed with other, non-hazardous

waste streams from a variety of sources other than

“households,” including small commercial and indus-

trial sources, schools, hotels, municipal buildings,

churches, etc. * * * New section 3001(d) [sic]

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.

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

phasis added). Directly reflecting that intent, the statute

provides that a resource recovery facility burning munici-

pal solid waste “shall not be deemed to be treating, stor-

ing, disposing of, or otherwise managing hazardous wastes”

if the facility receives and burns only household waste

and nonhazardous commercial or industrial solid wastes

and establishes appropriate procedures to assure that haz-

ardous wastes are neither received nor incinerated at the

facility. 42 U.S.C. § 6921(i). In short, section 3001 (i)

“clarified” the preexisting household waste exclusion by

providing that a resource recovery facility that burns

11

household waste and nonhazardous waste from sources

other than households (e.g., commercial sources) will

remain entitled to the exclusion if precautions are taken

to ensure that the facility does not accept or incinerate

hazardous waste.

The court of appeals’ majority ignores this context and

narrowly reads section 3001(i) as an evisceration of EPA’s

regulatory position by focusing on the absence of the

word “generation” in section 3001(i). The absence of

the word “generation” to identify activities of resource

recovery facilities that are exempt from hazardous waste

regulation is, however, entirely consistent with the lan-

guage used by EPA to explain the household waste ex-

clusion—*“|sJince household waste is excluded in all

phases of its management, residues remaining after treat-

ment (é.g., incineration, thermal treatment) are not sub-

ject to regulation as hazardous waste.” 45 Fed. Reg. at

33099 (emphasis added). That is precisely what the

Statute says—activities that would constitute “otherwise

managing hazardous wastes,” which necessarily includes

ash residue remaining after waste-to-energy combustion,

are excluded from regulation as a hazardous waste.

Key legislative history, moreover, confirms that section

3001(i)’s use of the phrase “otherwise managing” was

intended to exclude resource recovery facility ash from

hazardous waste regulation. Specifically, the Senate Re-

port, supra, accompanying the legislation describes the

section 3001(i) exclusion as follows: “All waste manage-

ment activities of such a facility, including the generation,

transportation, treatment, storage and disposal of waste

shall be covered by the exclusion. . . .” S. Rep. No. 284

at 61 (emphasis added)." When examined in this overall

*Importantly, the Conference Committee adopted the Senate’s

proposed clarification of the household waste exclusion without

change. H.R. Conf. Rep. No. 1133, 98th Cong., 2d Sess. 79, 106

(1984).

—

12

context, the court of appeals’ myopic reliance on the

absence of the word “generation” in section 3001(1) 1s

plainly misplaced.

The decision below also renders section 3001(1) essen-

tially meaningless. Simply put, a resource recovery fa-

cility that accepts only household waste (deemed non-

hazardous by EPA’s household waste exclusion, supra,

40 C.F.R. § 261.4(b)(1)) and nonhazardous commer-

cial or industrial waste would never be “treating, storing,

disposing of, or otherwise managing hazardous wastes.

and, thus a separate statutory exemption for such activi-

ties—section 3001(i)—would not be needed. As e€x-

plained by the district court in Wheelabrator, supra note

5, if resource recovery facility ash is not excluded from

hazardous waste regulation, “it is difficult to understand

what, if any benefit resource recovery facilities derive

from the exemption.” 725 F. Supp. at 763 n.12. In

short, the only meaningful interpretation of RCRA sec-

tion 3001(i) is that it exempts resource recovery facility

ash from regulation as a hazardous waste.

B. The Only Interpretation Of RCRA Section 3001 (i)

That Serves RCRA’s Objectives And Policies Is

That Ash Produced At A Resource Recovery Facil-

ity Is Exempt From Hazardous Waste Regulation

The court of appeals’ interpretation of RCRA section

3001(i) is also incompatible with the objectives and

policies of RCRA as a whole. Since enactment of the

Solid Waste Disposal Act in 1976, Congress has on nu-

merous occasions expressed its intent to promote resource

recovery facilities in order to achieve RCRA’s goals of

protecting health and environment and conservation of

material and energy resources. See 42 U.S.C. § 6902

(a)(1) (objectives of RCRA include promotion of re-

source recovery and resource conservation systems ).

More specifically, in adopting the Solid Waste Disposal

Act Amendments of 1980, Congress expressly recognized

13

that “the recovery of energy and materials from municipal

waste, and the conservation of energy and materials con-

tributing to such waste streams, can have the effect of

reducing the volume of the municipal waste stream and

the burden of disposing of increasing volumes of solid

waste.” 42 U.S.C. § 694la. See also S. Rep. No. 284

at 61 (“[iJt is important to encourage commercially viable

resource recovery facilities and to remove impediments

that may hinder their development and operation” ).*

Congress’ intent to encourage resource recovery facili-

ties as environmentally beneficial solid waste management

tools is also evident in RCRA’s warnings that “land is too

valuable a national resource” to be devoted to disposal of

most of our solid waste, and that “alternatives to existing

methods of land disposal must be developed”. 42 U.S.C.

$$ 6901(b)(1) and (8). Consistent with those statu-

tory objectives, waste combustion with energy recovery is

favored over landfilling, the principal alternative. See

1990 Update at 4; 1992 Update at 1-4; see also 54 Fed.

Reg. 52209, 52245 (December 20, 1989) (“The EPA

believes it is preferable to burn the combustible materials

in [a municipal waste combustor] [rather] than to landfill

them. Not only is landfilling a disfavored waste manage-

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

*’ The volume of municipal solid waste in the United States, as

well as the burden of disposing that waste, continues to increase

steadily. For the most recent three-year period for which EPA

survey data are available (1988-90), MSW increased by 9 percent—

180 million tons to 195.7 million tons. U.S. Environmental Protec-

tion Agency, Characterization of Municipal Solid Waste in the

United States: 1992 Update, EPA/530-R-92-019, ES-3 (July 1992)

(cited below as “1992 Update’); U.S. Environmental Protection

Agency, Characterization of Municipal Solid Waste in the United

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

below as “1990 Update”). Moreover, EPA projects an increase to

222 million tons by the year 2000. 1992 Update at ES-3.

14

sound policy to recover the energy value of the combus-

tibles rather than burying them”) (citations omitted ).

The objectives and policies of RCRA encouraging the

production of usable energy from waste to reduce both

our reliance on diminishing fossil fuel resources and

the burden of disposing of increasing volumes of MSW

directly parallel numerous state laws that vigorously en-

courage expanded use of resource recovery facilities and

decreased reliance on landfilling of municipal solid

waste. For example, section 2(b) of the Tennessee Solid

Waste Planning and Recovery Act, Tenn. Stat. Ann.

§ 68-31-602(b), provides that, among other things, “waste-

to-energy incineration (resource recovery ) will substan-

tially lessen our dependence on landfills as a means of

disposing of solid waste, aid in the conservation and

recovery of valuable resources, [and] conserve energy In

the process. . . .” Likewise, section 32(f) of the Michi-

gan Solid Waste Management Act, Mich. Comp. Laws

$ 299.432(4), prescribes a statewide “strategy to en-

courage resource recovery and establishment of waste-

to-energy facilities” with the “goal of reducing land dis-

posal to unusable residuals by the year 2005”. The

Combustion reduces waste volume or mass by approximately

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

the Status of Municipal Waste Combustion, Waste Age 109, 156

(November 1990). See also Michigan Department of Natural Re-

sources. Michigan Solid Waste Policy 6 (1988) (although landfilling

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

least desirable option because of the risk of groundwater contami-

nation and the waste of some valuable materials”) ; Commonwealth

of Massachusetts, Department of Environmental Protection, Toward

a System of Integrated Solid Waste Management/The Common-

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

the management of most wastes, combustion offers more effective

environmental control and monitoring systems with less potential

for long-term, irreversible damage to the environment”); N.H.

Code Admin. R. 149-M:1-a (waste-to-energy technologies are pre-

ferred over landfilling).

10 See also Fla. Stat. Ann. § 377.709 (MSW combustion “to sup-

plement the electricity supply not only represents an effective con-

15

result of these laws and policies has been a significant

increase in the development of waste-to-energy, resource

recovery facilities (employing state-of-the-art air pollu-

tion control systems) by local government as part of

integrated solid waste management plans (which also

include source reduction, recycling, etc.). Between 1985

and 1990 annual combustion of MSW with energy recov-

ery increased from 7.6 to 29.7 million tons. 1992 Update

at 3-2, Table 24; see also id. at 3-3. The 1990 level is

projected to increase more than 50 percent by the year

2000 and reach 46.2 million tons. /d. at 4-16 and 4-18,

Table 34. An important source of electric energy, the

federal government has projected a seven-fold increase

between 1991 and 2010 in the amount of electricity gen-

erated in the United States from MSW combustion. See

U.S. Dept. of Energy, National Energy Strategy 126 (lst

ed. 1991/1992).

The court of appeals’ decision contravenes the policies

and objectives of RCRA (and the state statutes and pol-

icies which it spawned) and imposes a classic “Catch-22”

on amici and many other communities that followed Con-

gress’ lead and developed resource recovery facilities.

These actions were taken with knowledge that resource

recovery facilities were not only environmentally superior,

but also generally more costly in the short run than land-

filling MSW." If the ash residue from a resource recovery

servation effort but also represents an environmentally preferred

alternative to conventional solid waste disposal”); Pa. Stat. Ann.

title 35, § 6018.102(2) (encouraging the development of resource

recovery facilities “as a means of managing solid waste, conserv-

ing resources, and supplying energy”); Va. Code Ann. § 10.1-1402

(Virginia Waste Management Board directed to promote the de-

velopment of resource recovery systems); Michigan Solid Waste

Policy, supra note 9 (establishes goal of managing 35 to 45 percent

of the state’s municipal waste through the use of resource recovery

facilities and reducing the amount of MSW going to landfills to 10

percent by the year 2005).

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

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

16

facility must now be managed subject to hazardous waste

standards, operating costs will increase dramatically. For

example, recent EPA data show that the cost of disposal

in a hazardous waste landfill is ten times the cost of dis-

posal at a nonhazardous waste (Subtitle D) landfill:

Although costs vary significantly from region to re-

gion, when averaged on a national basis there is over

a ten-fold difference between the cost of disposal of

MWC ash in a Subtitle C facility compared to a

Subtitle D landfill: the cost of transporting and dis-

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

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

Subtitle D landfill is approximately $42.00 per ton.

Memorandum from William K. Reilly, Administrator, U.S.

EPA, to all Regional Administrators, Subject: Exemp-

tion for Municipal Waste Combustion Ash From Hazard-

ous Waste Regulation Under RCRA Section 3001(i), at

7 (September 18, 1992) (cited below as “EPA Admin-

istrator’s Memorandum”), reprinted in the appendix to

Petition for a Writ of Certiorari (“Pet. App.”’), S. Ct. Case

No. 92-1639. 41a. 48a-49a. As a consequence of that

more than ten-fold increase in ash disposal costs as well

as other costs associated with managing ash as a hazard-

ous waste (e.g., ash testing, employee training, etc.). the

tipping fees charged by individual resource recovery facil-

ities could easily double or triple."* The economic burden

solid waste processed. Kiser, supra note 9, at 156. In contrast, the

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

per ton. National Solid Wastes Management Association, 1990

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

facilities are generally more costly than landfilling because of the

very substantial investment in plant and equipment.

12 MSW combustion ash amounts to approximately 25 percent

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

Accordingly, the tipping fee for each ton of MSW processed would

generally include the cost to dispose of 0.25 tons of ash (i.e., 25 per-

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

disposal cost noted above, a tipping fee currently in the range of

$50 per ton of MSW processed (see supra note 11) would triple.

17

that results from the court of appeals’ interpretation of

section 3001(i) cannot be reconciled with Congress’ in-

tent to encourage resource recovery facilities.

The additional cost burden is, moreover, a very trou-

bling prospect for communities across the United States

who already face fiscal problems. Protection of public

health and the environment is a primary concern of amici

and a principal factor underlying development of re-

source recovery facilities by the communities amici rep-

resent. Nevertheless, the cost of complying with federal

environmental mandates has become a serious concern

for local government. See Ohio Municipal League, Ohio

Metropolitan Area Cost Report for Environmental Com-

pliance (September 15, 1992); Municipality of Anchor-

age, Alaska, Paying for Federal Environmental Mandates:

A Looming Crisis for Cities and Counties (January

1993). As a result of the court of appes's’ decision,

amici and many communities across the United States

that are already grappling with serious fiscal problems

now face an additional burden—a dramatic increase in

waste management costs far beyond the level of cost an-

ticipated when those communities chose resource recovery

facilities as an environmentally sound solid waste man-

agement strategy. The result could be to force many

existing resource recovery facilities to shut down, and

future development of new facilities would essentially be

eliminated, all of which is contrary to RCRA’s policy of

encouraging resource recovery and alternatives to land

disposal of solid wastes.”®

13 [t is likely to be more economic for many communities to shut

down their resource recovery facilities, landfill the communities’

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

fixed costs on the dormant resource recovery facilities rather than

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

residue as hazardous waste. See supra notes 11 and 12. Moreover,

the potential liability associated with navigating the complex scheme

18

The decision below also is incompatible with RCRA’s

goals of protecting public health and the environment.

In support of its decision that MSW ash must be treated

as hazardous waste, the court of appeals stated that “[iJt

is unlikely that Congress, in an express effort to promote

the proper disposal of dangerous substances that otherwise

would seep into the ground and water table, would sanc-

tion the dumping of massive amounts of hazardous waste

in the form of ash into ordinary landfills.” 948 F.2d at

352. But contrary to the court of appeals’ assumption,

MSW combustion ash poses less environmental concern

than the alternative that the court’s decision necessarily

encourages, landfilling of MSW. See supra note 9. See

also State of Florida, Division of Administrative Hearings,

Final Order Approving Certification, Application for

Power Plant Site Certification of Lee County Solid Waste

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

(June 19, 1992) (adopting Recommended Order’s find-

ing of fact € 7 (December 9, 1991) that leachate from

MSW combustion ash is far less of an environmental con-

cern than the leachate from MSW); U.S. Environmental

Protection Agency, Characterization of Municipal Waste

Combustion Ash, Ash Extracts and Leachates, EPA '530-

SW-90-29A (March 1990) (leachate from ash monofills

generally meets EPA’s drinking water standards). In fact,

MSW combustion ash is now being beneficially reused in

a variety of applications, including road construction and

as a raw material in cement manufacturing. See Richard

W. Goodwin, Defending the Character of Ash, Solid

Waste & Power 18, 19-20 (September October 1992) (as

a result of the lime used by the pollution control systems

of many resource recovery facilities, the ash residue con-

tains concrete-like mineral end products that prevent

heavy metals from being released into the leachate); see

also N.Y. Comp. Codes R. & Regs. title 6, § 360-3.5(h)

of federal hazardous waste regulations would further discourage

the use of resource recovery facilities, in direct contradiction of

Congress’ policy of encouraging these facilities.

19

(requirements for approval of beneficial use of MSW ash

residues ); Fla. Admin. Code Ann. r. 17-702.600 (require-

ments for recycling MSW ash residue).”*

Finally, the court of appeals’ decision raises potentially

serious implications for our Nation’s limited hazardous

waste landfill capacity. It has been estimated that as of

the end of 1987, the United States had 34 million tons

of hazardous waste landfill capacity.** Given the difficulty

of siting hazardous waste landfills, significant additional

capacity is unlikely to become available soon."* On the

other hand, resource recovery facilities currently in opera-

tion produce approximately 8.5 million tons of ash each

year. See supra p. 6. If ash must now be disposed in

hazardous waste landfills, it can readily be seen that ail!

14 The Seventh Circuit’s above-quoted statement also appears to

have been made without considering the record in this case. The

waste combustion ash directly at issue here (from Chicago’s North-

west Waste-to-Energy Plant) is disposed in Michigan at a monofill

(a sanitary landfill that receives only municipal incinerator ash)

that is lined and equipped with ground water monitoring and

leachate collection systems. Petition for a Writ of Certiorari, S. Ct.

Case No. 92-1639, at 7. Those disposal standards are required by

Michigan law, Mich. Comp. Laws § 299.432a, and are typical of the

laws of a number of other states. See, e.g., Mass. Regs. Code title

310, § 19.119; Fla. Admin. Code Ann. r. 17-702.570. See also 40

C.F.R. part 258 (adopting stringent federal criteria for municipal

landfills and monofills receiving MSW combustion ash).

15 Regulation of Municipal Solid Waste Incinerators: Hearing on

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

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

Cong., 1st Sess. 198 (1989) (testimony of David L. Sokol, Chair-

man of the Institute of Resource Recovery). EPA has not pub-

lished an estimate of hazardous waste landfill capacity in the United

States.

16 Of the 20 hazardous waste landfills in the United States, only

one (Last Chance, Colorado hazardous waste landfill) has been

permitted during the past twelve years. See William Gruber, TSD

Summary 1993, EI Digest 14, 17 (January 1993); Jeffrey D.

Smith, Hazardous Waste Landfill Facility Information, EI Digest

24 (March 1992).

20

of the United States’ current hazardous waste landfill ca-

pacity could be consumed within a very short period,

thereby creating a hazardous waste management crisis.

In sum, the court of appeals’ decision ignores the plain

meaning and legislative intent of section 3001 (1). As a

result, the decision jeopardizes the viability of existing

resource recovery facilities and the development of new

facilities, and encourages environmentally inferior aiterna-

tives (such as landfilling) for managing municipal solid

waste, all of which is contrary to RCRA’s policy and

objectives.

Il. THE EPA ADMINISTRATOR’S INTERPRETATION

OF RCRA SECTION 3601(i) THAT RESOURCE RE-

COVERY FACILITY ASH IS EXEMPT FROM HAZ-

ARDOUS WASTE REGULATION IS ENTITLED TO

DEFERENCE

Amici submit that RCRA section 2001(i), based on

its plain meaning as well as the overall legislative context

of RCRA’s policies and objectives, exempts resource re-

covery facility ash from hazardous waste regulation.

Nevertheless, should this Court conclude that section

3001(i) is ambiguous with regard to the regulatory treat-

ment of resource recovery facility ash residue, deference

to the EPA Administrator’s reasonable interpretation of

section 3001(i) is warranted. See Chevron, U.S.A., Inc. v.

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

844 (1984).

When certiorari was initially granted in this matter, the

decision below was remanded to the court of appeals for

further consideration in light of the EPA Administrator's

September 18, 1992 memorandum, supra p. 16. See 113

S. Ct. at 486. That memorandum concluded that the

exemption of resource recovery facility ash from hazard-

ous waste regulation is consistent with the language of

section 3001(i) and its legislative history, and best serves

RCRA’s goals of protecting the environment and promot-

ing resource recovery. EPA Administrator’s Memoran-

dum, Pet. App. at 49a. On remand, the Seventh Circuit

21

summarily declined to defer to the EPA Administrator’s

interpretation reasoning that it was yet another change in

EPA’s interpretation of section 3001(i). 985 F.2d at

304.

The EPA provided its initial interpretation of section

3001(i) in the regulatory preamble that accompanied

codification of section 3001(i) in EPA’s hazardous waste

management regulations. 50 Fed. Reg. 28702, 28725

(July 15, 1985). While noting that it did not interpret

section 3001(i) as exempting MSW ash from hazardous

waste regulation if that ash “routinely exhibits” a hazard-

ous waste characteristic, EPA concluded its discussion of

section 3001 (i) by stating that the Agency:

does not believe the [1984 RCRA amendments—

including section 3001 (i) ] impose new regulatory bur-

dens on resource recovery facilities that burn house-

hold and other non-hazardous waste, and the Agency

has no plans to impose additional responsibilities on

these facilities. Given the highly beneficial nature of

resource recovery facilities, any future 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 arise about

the residues.

Id. at 28726. The concluding statement strongly suggests

that MSW ash is exempt from hazardous waste regulation

as it had been under the household waste exclusion.”

17 Subsequent congressional testimony demonstrates EPA’s on-

going analysis of the issue. See Resource Conservation and Re-

covery Act—Oversight: Hearings Before the Subcomm. on Hazard-

ous Wastes and Toxic Substances of the Senate Comm. on Environ-

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

(statement of J. Winston Porter, EPA Asst. Administrator, Office

of Solid Waste and Emergency Response) (after reconsidering its

1985 statement that ash could be hazardous, the Agency believes it

may have been in error); Regulation of Municipal Solid Waste

Incinerators, supra note 15, at 33 (statement of Sylvia Lowrance,

EPA Director, Office of Solid Waste) (EPA continues to follow its

1985 interpretation, but believes the statute needs to be clarified).

22

The EPA Administrator’s September 1992 memoran-

dum conclusively and authoritatively reaches that same

conclusion: resource recovery facility ash is not subject to

regulation as a hazardous waste. As explained in that

memorandum, EPA believes that its interpretation is con-

sistent with the text and legislative history of section

3001(i) and best serves that statute’s goals of protecting

the environment and promoting resource recovery. EPA

Administrator's Memorandum, Pet. App. at 49a. The Ad-

ministrator’s interpretation is also supported by EPA’s re-

cent adoption of stringent criteria for municipal landfills

and monofills that receive MSW ash, including siting re-

strictions, facility design and operating criteria, and

ground water monitoring requirements. Id. at 46a-47a.

See supra note 14.

Contrary to the court of appeals’ conciusion, the evolu-

tion of EPA’s analysis on this important issue does not

summarily negate the deference due to the final decision

expressed in the EPA Administrator’s memorandum. See

Chevron, 467 U.S. at 863-64 (revised agency interpreta-

tions deserve deference, as administrative agencies must

consider the wisdom of their policies on a continuing

basis). Moreover, even “sharp breaks” with prior agency

interpretations are entitled to deference, Rust v. Sulli-

van, 111 S. Ct. 1759, 1769 (1991) (quoting Chevron,

467 U.S. at 862), where the revised interpretation is sup-

ported by a reasoned analysis. Motor Vehicle Manufac-

turers Assn. of the United States, Inc. v. State Farm Mu-

tual Automobile Ins. Co., 463 U.S. 29, 42 (1983).

in this case, even if the EPA Administrator's memoran-

dum can be considered a “sharp break” from a well-settled

interpretation, deference is required because the “changed”

interpretation is supported by a reasoned analysis. Spe-

cifically, as explained in the EPA Administrator’s memo-

randum, the conclusion that MSW ash is exempt from

hazardous waste regulation is based on the Agency’s anal-

ysis of the plain language and legislative intent of section

23

3001(i), the statutory policies encouraging resource re-

covery facilities, and environmental and solid waste man-

agement policy considerations. Cf. Rust, 111 S, Ct. at

1769 (agency’s change in interpretation justified where

prior policy failed to implement the statute properly and

the new regulations are more consistent with the original

intent of the statute). The conclusion reached by the

Administrator’s memorandum is the only permissible in-

terpretation of RCRA section 3001(i). To deny defer-

ence to an agency interpretation which revises a prior

internally inconsistent interpretation of the statutory lan-

guage is irrational.

Thus, to the extent this Court finds the language of

section 3001(i) to be ambiguous, deference should be

granted to the EPA Administrator’s reasonable interpreta-

tion of the statute, namely, that resource recovery facility

ash is not subject to hazardous waste regulation under

RCRA.

CONCLUSION

For the foregoing reasons, amici urge the Court to re-

verse the judgment of the court of appeals.

Respecifully submitted,

Scott M. DuBorFr *

ANDREAS H. LESKOVSEK

WINSTON & STRAWN

1400 L Street, N.W.

Washington, D.C. 20005-3502

(202) 371-5704

Counsel for Amici Curiae

Barron County, Wisconsin,

* Counsel of Record et al.

(Additional Counsel Listed on Inside Cover)

la

APPENDIX

Section 3001(i) of the Resource Conservation and

Recovery Act, 42 U.S.C. § 6921(i).

(i) Clarification of household waste exclusion

A resource recovery facility recovering energy

from the mass burning of municipal solid waste

shall not be deemed to be treating, storing, dis-

posing of, or otherwise managing hazardous

wastes for the purposes of regulation under this

subchapter, if—

(1) such facility—

(A) receives and burns only—

(i) household waste (from single and multi-

ple dwellings, hotels, motels, and other residential

sources), and

(ii) solid waste from commercial or indus-

trial sources that does not contain hazardous waste

identified or listed under this section, and

(B) does not accept hazardous wastes identi-

fied or listed under this section, and

(2) the owner or operator of such facility has

established contractual requirements or other appro-

priate notification or inspection procedures to assure

that hazardous wastes are not received at or burned

in such facility.