# Amicus Curiae Brief — Chicago v. Environmental Defense Fund

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1994
- **Citation:** 511 U.S. 328

## Text

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)

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0395%3A13. Public record. Not legal advice.