Amicus Curiae Brief — Chicago v. Environmental Defense Fund

No. 92-1639

IN THE

Siypreme Court of the Wuited States

OCTOBER TERM, 1993

THE CITY OF CHICAGO, et al.,

Petitioners,

V.

ENVIRONMENTAL DEFENSE FUND, et ai.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

BRIEF OF WHEELABRATOR TECHNOLOGIES INC.

AND INTEGRATED WASTE SERVICES ASSOCIATION

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

MARK P. PAUL HAROLD HIMMELMAN

Vice President and General Counsel of Record

Counsel DAVID M. FRIEDLAND

W HEELABRATOR MARGARET LATTIN BAZANY

TECHNOLOGIES INC. BEVERIDGE & DIAMOND, P.C.

Liberty Lane 1350 I Street, N.W., Suite 700

Hampton, NH 03842 Washington, D.C. 20005

(603) 929-3000 (202) 789-6000

INTEGRATED WASTE SERVICES

ASSOCIATION

1133 21st Street, N.W.

Suite 205

Washington, D.C. 20036

(202) 467-6240

Attorneys for Amici

August 19, 1993

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

* BEST AVAILABLE COPY

a eee

TABLE OF CONTENTS

Page

pe PR Fy se | Re iii

INTEREST OF AMICI CURIAE ......................000.00000.... 1

ee ee nk cecum

a 3

B. The United States District Court for the South-

ern District of New York Held That Section

3001(i) Excludes Ash from Regulation as a

Hazardous Waste and the Second Circuit Af-

RAE cy EE en rN 4

C. Regulation of Ash Under Subtitle D Is Safe,

Environmentally Sound, and Promotes Resource

EIR CIES ARS SI Oe Bre ne 6

1. Ash Is Safely Managed Under Subtitle D _....

2. The Section 3001(i) Exclusion Is One of Sev-

eral Exclusions of Waste Streams from

RCRA Hazardous Waste Regulation ............ 8

3. Management of Ash Under Subtitle D Pro-

motes the Policy Objectives of RCRA............. 9

lb) FN 4 i a 0 8) | +, y SR 10

FARE RD ERS ate as aS Oe TR 12

I. THE SEVENTH CIRCUIT ERRED IN HOLD-

ING THAT SECTION 3001 (i) OF RCRA DOES

NOT EXCLUDE ASH FROM REGULATION

AS A HAZARDOUS WASTE ...........0...........-.... 12

A. The 1980 Household Waste Exclusion that

was “Clarified” by Section 3001(i) Excludes

from Regulation as Hazardous Waste Ash

from RRFs that Burn Only Household Waste.. 12

B. The Plain Language of Section 3001(i) Ex-

cludes the Management of Ash from Haz-

ardous Waste Regulation ...........................-- 15

ii

TABLE OF CONTENTS—Continued

1. The statutory term “otherwise managing

hazardous wastes” includes the manage-

BONNE GE GIR nccccecccncscccaccenucscunsesunnenieeeeaeaeee

2. The statutory terms “disposing” and

“storing’’ encompass the activities of a

resource recovery facility regarding ash..

3. EDF’s reading of Section 3001(i) ren-

ders the statutory language meaningless..

C. The Legislative History of Section 3001 (i)

Confirms That Congress Excluded Ash from

Regulation as a Hazardous Waste at Resource

Recovery Facilities Complying with the Re-

quirements of the Exclusion ...........................

1. The Senate Report provisions addressing

Section 3001(i), which were adopted in

total in the Conference Report, confirm

that ash is excluded from regulation as a

ee

2. The Seventh Circuit majority and EDF

misread the legislative history of Section

BOGE CB) .nccnecccccecccetvcovsensesennnneeee

II. EPA INTERPRETS THE STATUTE TO EX-

CLUDE ASH FROM REGULATION AS A

HAZARDOUS WASTE AT QUALIFYING RE-

SOURCE RECOVERY FACILITIES ................

CONCLUSION ..............0-comssssssesesessenenensiansteninennnniinnnnannn

Page

17

18

19

21

24

26

29

30

iii

TABLE OF AUTHORITIES

CASES: Page

Blanchard v. Bergeron, 489 U.S. 87 (1989) ......... 21, 22

Board of Governors of Federal Reserve System v.

Dimension Finance Corp., 474 U.S. 361 (1986). 28

Bowen v. Georgetown Univ. Hosp., 488 U.S. 204

EE 22

Browning-Ferris Indus. v. Kelco Disposal, Inc.,

a 22

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

Council, Inc., 467 U.S. 887 (1974) .....0000000 0. 29

Conroy v. Aniskoff, —— U.S. ——, 113 S. Ct. 1562

cannes a 12, 22

Environmental Defense Fund v. City of Chicago,

727 F. Supp. 419 (N.D. Ill. 1989), rev'd, 948

F.2d 345 (7th Cir. 1991), vacated and remanded,

— U.S. ——, 118 S. Ct. 486 (1992), adhered

to on remand, 985 F.2d 303 (7th Cir.), cert.

granted, —— U.S. —, 61 U.S.L.W. 3851

Neen emssesenesenene 6

Environmental Defense Fund v. City of Chicago,

948 F.2d 345 (7th Cir. 1991), vacated and re-

manded, —— U.S. ——, 113 S. Ct. 486 (1992),

adhered to on remand, 985 F.2d 303 (7th Cir.),

cert. granted, U.S. ——, 61 U.S.L.W. 3851

ssumeomnconens passim

Environmental Defense Fund v. Wheelabrator

Technologies Inc., 725 F. Supp. 758 (S.D.N.Y.

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

— U.S, —_—, 112 S. Ct. 458 (1991) ................. passim

Environmental Defense Fund v. Wheelabrator

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

denied, —— U.S. ——, 112 S. Ct. 453 (1991) .... 5

Green v. Bock Laundry Mach. Co., 490 U.S. 504

a nnuscssunneencs 12, 23

Haig v. Agee, 453 U.S. 280 (1981) —........ 1 27

22

Local Union 1261 v. Federal Mine Safety Commis-

sion, 917 F.2d 42 (D.C. Cir. 1990) 2...

Mead Corp. v. B.E. Tilley, 490 U.S. 714 (1989) _.... 26

NLRB vv. Bell Aerospace Co., 416 U.S. 267 (1974) .. 27

iv

TABLE OF AUTHORITIES—Continued

Page

Pacific Gas & Electric Co. v. State Energy Re-

sources, Conservation & Dev. Comm’n, 461 U.S.

ARE ren re Ware eres EN 23

Public Citizen v. United States Dept. of Justice,

491 U.S. 440 (1989) .. acne 21

Texas State Teachers Assoc. v. Garland: Indep.

School Dist., 489 U.S. 782 (1989) 0 22

Thornburg v. Gingles, 478 U.S. 30 (1986) 23

United States v. Riverside Bayview Homes, Inc.,

Se es I ID hich 29

Young v. Community Nutrition Inst., 476 U.S. 974

UTTITIITIEE ccciestsieashurnedsthbieenieinstithathtestddesenmenietheeeenceeeace dine ania 27

STATUTES:

Solid Waste Disposal Act Amendments of 1980,

Pub. L. No. 96-463, 46 Stat. 2055 (1980) 9

Cy es i 9

4 Area! 9

ge ER Ee 18

Ge ts TD CD icc cececsecentccenernrenn 18

42 U.S.C. § 6903(33) (1988) 0. ceateiniadtihaniialdinals 19

Seen 10

42 U.S.C. $§ 6921-39e (1988) 0. 3

a 12, 18

42 U.S.C. § 6921 (b) (2) (1988) ......................0 8

42 U.S.C. § 6921 (b) (3) (1988) .......... 8

42 U.S.C. § 6921(b) (3) (A) (1988) 0. 8

42 U.S.C. § 6921 (b) (3) (C) (1988) Ae site 8

eR eee passim

42 U.S.C. § 6921 (i) (2) (1988) 0. ae 29

RS EE enema mnt: Sree 18

SSO - 18

oy SS Swear est 18

A I 18

I 10

42 U.S.C. $§ 6941-49a (1988) 0. 4

42 U.S.C. § 6943(c) (1) (B) (1988) 2... 10

42 U.S.C. § 6948 (d) (3) 1988 2.0... 10

gE ee 8

ER ee 8

v

TABLE OF AUTHORITIES—Continued

42 U.S.C. § 6982(n) (1988) 2... cceecceeeeeeeeee-

42 U.S.C. § GBB2(o) (19BB) on... ccccsccescceneesee

42 U.S.C. § 6982(p) (1988) cece cece eee

wow ew

RULES:

Sup. Ct. R. 37 ............. soeieapeidaitaliseatabieeciiabiaiunidastadanneidiioninadualadande

="

REGULATIONS:

40 C.F.R. § 258.10-258.16 (1992) ss

Ga as ee I depths

40 C.F.R. § 258.27 (1992) PEER r see POTEET te

i te I sacar esccictencencicseeaicininceeeariiiee

40 C.F.R. §§ 258.50-.58 (1992) aa A REV IAN on

40 C.F.R. § 261.4(b) (1) (1992) 1

40 C.F.R. § 261.4(b) (2) (1992)

40 C.F.R. § 261.4(b) (3) (1992) aera Sa ee

40 C.F.R. § 261.4(b) (6) (1992) (as amended at 57

. 9 ££ ¢ _ . EERE SESncnnes

40 C.F.R. § 261.4 (b) (9) (1992) (as amended at 57

, * FF §. ) Seen

CoOwIWAIAIA

ee)

S-)

LEGISLATIVE AND ADMINISTRATIVE

MATERIALS:

BL ean

45 Fed. Reg. 33,120 (1980), (codified as amended

ee Bete BP) ee

49 Fed. Reg. 44,978 (1984) ......

.. & 5 | | ecnensseD

50 Fed. Reg. 28,725 (1985) 000.

51 Fed. Reg. 24,496 (1986) 0

53 Fed. Reg. 25,446 (1988) _......

a Co iccicnccccncstectinetnnnemesnesienntaions

56 Fed. Reg. 50,978 (1991) 0...

ee I a ciiccnccescsstcccnsenesenseeiees

Oy I casssesieneinioenaianninas

58 Fed. Reg. 15,284 (1988) ........................................-.

58 Fed. Reg. 40,568 (1998) 0

58 Fed. Reg. 42,466 (1998) .................................00.0... R,

58 Fed. Reg. 42,476 (1908) _.................-.ccccccccccccceceee

BS8ane &

ovnwownwOwow

vi

TABLE OF AUTHORITIES—Continued

Page

es ey GD a cuseesmsesnioammansade 9

S. Rep. No. 988, 94th Cong., 2d Sess. 16 (1976)... 13

S. Rep. No. 284, 98th Cong., Ist Sess. 61 (1983) 24, 25,

27

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

(1984), reprinted in 1984 U.S.C.C.A.N. 5649... 26

MISCELLANEOUS:

Coalition on Resource Recovery and the Environ-

ment and NUS Corporation on behalf of U.S.

Environmental Protection Agency, Document

No. EPA/530-SW-90-029A, “Characterization

of Municipal Waste Combustion Ash, Ash Ex-

tracts, and Leachates” (Mar. 1990) 0.000000. 7

George A. Costello, Average Voting Members and

Other “Benign Fictions”: the Relative Relia-

bility of Committee Reports, Floor Debates, and

Other Sources of Legislative History, 1990 Duke

L.J. 39 (1990) ........... PSR Aden CS RE 23

Richard W. Goodwin, Defending the Character of

Ash, VI Solid Waste & Power (Sept.-Oct.

ISO nN AD race ee nee tees eae TN a 6

NUS Corporation on behalf of U.S. Environmen-

tal Protection Agency, Document No. EPA/530-

SW-87-028A, “Final Characterization of Munic-

ipal Waste Combustion Ashes and Leachates

From Municipal Solid Waste Landfills, Monofills

and Codisposal Sites,” Vol. 1 (Oct. 1987) —........ 6

William K. Reilly, Administrator, U.S. Environ-

mental Protection Agency, “Exemption for

Municipal Waste Combustion Ash From Haz-

ardous Waste Regulation Under RCRA Section

gl ER SR 7,15, 29

Solid Waste Association of North America and

Center for Resource Recovery, Technology and

Science, “Municipal Waste Combustion Ash and

Leachate Characterization—Monofill Fourth

} gf gl Ee 7

Patricia M. Wald, The Sizzling Sleeper: The Use

of Legislative History in Construing Statutes in

the 1988-89 Term of the United States Supreme

Court, 39 Am. U.L. Rev. 277 (1990) 22

In THE

Supreme Court of the United States

OCTOBER TERM, 1993

No. 92-1639

THE City OF CHICAGO, ef al.,

Petitioners,

Vv.

ENVIRONMENTAL DEFENSE FUND, et ai.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

BRIEF OF WHEELABRATOR TECHNOLOGIES INC.

AND INTEGRATED WASTE SERVICES ASSOCIATION

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

Wheelabrator Technologies Inc. and the Integrated

Waste Services Association respectfully file this brief as

amici curiae in support of the petitioners. Written con-

sent has been obtained from counsel for petitioners and

respondents for the filing of this brief pursuant to Su-

preme Court Rule 37. The letters reflecting consent have

been filed with the clerk’s office.

INTEREST OF AMICI CURIAE

Wheelabrator Technologies Inc. (“Wheelabrator’’) is

the defendant in the Second Circuit case addressing the

2

legal status of ash at the Westchester County Resource

Recovery Facility (“Facility”). The opinion in that case

is in direct conflict with the Seventh Circuit opinion under

review here. Wheelabrator is a founding member of the

Integrated Waste Services Association.

As the prevailing party in the Second Circuit case,

Wheelabrator brings a unique perspective to this proceed-

ing. Wheelabrator has been in the business of designing,

constructing, owning and operating resource recovery

facilities (“RRFs”) for over 15 years. Currently, Wheel-

abrator operates 14 RRF plants and five small power

facilities which each day generate 13 million kilowatt

hours of electricity, equivalent to the electricity generated

by over 35,000 barrels of oil. Wheelabrator’s RRFs elimi-

nate eighty percent of the weight and ninety percent of

the volume of municipal solid waste while recovering over

600 kilowatt hours per ton. Wheelabrator is one of the

nation’s ten largest independent power producers.

The Integrated Waste Services Association (“IWSA”)

is a national trade association comprised of firms that

design, construct, operate and own municipal solid waste

management facilities, including composting, recycling and

resource recovery facilities for cities and counties. TWSA

is committed to integrated solid waste management poli-

cies that enable communities across the nation to utilize

the best combination of environmentally safe and cost

effective solid waste options to meet local needs—includ-

ing waste reduction, recycling, RRFs and _ landfilling.

This integrated approach is accepted by the Environ-

mental Protection Agency (“EPA”), state and local gov-

ernments and major public policy organizations such as

the U.S. Conference of Mayors and others.

Resource recovery facilities are an important com-

ponent of integrated waste management. The 142 RRFs

currently operating in the United States manage about

17% of our nation’s trash. These plants also produce the

equivalent amount of energy to power approximately 1.3

million homes, saving 31 million barrels of oil that would

3

otherwise cost three-quarters of a billion dollars each

year. Ash from RRFs is currently managed in landfills

(with other municipal wastes) or in monofills (a landfill

containing only ash). EPA has stated on numerous occa-

sions that management of ash in these ways is fully pro-

tective of human health and the environment. IWSA is

vitally interested in the statutory and regulatory status of

ash from RRFs because it is IWSA members who bear

the responsibility, along with local government entities,

for compliance with Resource Conservation and Recovery

Act (“RCRA”’) regulations for ash.

The City of Chicago’s brief will demonstrate that the

plain language of Section 3001(i) of RCRA excludes

the entire waste stream processed at an RRF, including

ash residues, from regulation as hazardous waste under

the RCRA program. Amici agree with Chicago or this

point as set forth below. In addition, Amici emphasize

in this brief that any possible statutory ambiguity regard-

ing the regulatory status of ash is resolved by the clear

and incontrovertible administrative and legislative history

of Section 3001(i) of RCRA-—-the “clarification of house-

hold waste exclusion.” See 42 U.S.C. § 6921(i).

STATEMENT OF THE CASE

A. Introduction

Six of the eight judges who have addressed the issue

have properly held that Section 3001(i) of RCRA ex-

cludes the ash from resource recovery facilities from regu-

lation as a hazardous waste. The Seventh Circuit major-

ity holding to the contrary fundamentally misreads the

language, purpose and context of the statute, leading to

a bizarre result—a statute that was clearly intended to

clarify and broaden the applicability of EPA’s household

waste exclusion is instead held to narrow it.

4

B. The United States District Court for the Southern

District of New York Held That Section 3001(i) Ex-

cludes Ash From Regulation as a Hazardous Waste

and the Second Circuit Affirmed.

The Environmental Defense Fund (“EDF”) filed com-

plaints against Wheelabrator in the United States District

Court for the Southern District of New York (“Southern

District’) and against the City of Chicago in the United

States District Court for the Northern District of Illinois

on January 27, 1988, alleging in both cases that the ash

from the RRFs should be regulated as a hazardous waste

under Subtitle C of RCRA, 42 U.S.C. §S§ 6921-39e,

rather than as a nonhazardous waste under Subtitle D, 42

U.S.C. §$§ 6941-49a. Chicago will chronicle the history

of the Seventh Circuit proceedings in its brief. Wheela-

brator and IWSA describe below the background of the

Southern District and Second Circuit proceedings.

Wheelabrator moved for dismissal or summary judg-

ment on the ground that Section 3001(i) of RCRA ex-

cludes ash from hazardous waste regulations if the RRF

complies with the requirements of that statutory provision.

EDF cross-moved for summary judgment.

In an exhaustive opinion rendered on November 21,

1989, Judge Haight agreed with Wheelabrator that ash

managed at a facility meeting the requirements of 3001 (i)

is excluded from regulation as a hazardous waste under

RCRA. Environmental Defense Fund v. Wheelabrator

Technologies Inc., 725 F. Supp. 758, 764-70 (S.D.NLY.

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

US. , 112 S. Ct. 453 (1991). The Court directly

addressed and rejected EDF’s central thesis that Section

3001(i) was enacted merely to exempt the Facility from

being regulated as a hazardous waste treatment, storage

and disposal (“TSD”) facility. Such as interpretation

would, the court held, render the statute superfluous:

EDF contends that Section 3001(i) merely ex-

empts the Facility from regulation as a treatment,

storage and disposal (“TSD”) facility (facilities that

ee

5

manage, rather than produce hazardous waste).

However, by its own terms Section 3001(i) does not

apply to resource recovery facilities that accept haz-

ardous waste for incineration, and plaintiff argues

that if a resource recovery facility should ever accept

hazardous waste, even accidentally, it would not be

eligible for exemption even from regulation as a TSD

facility. Under plaintiff's construction of Section

3001 (i) it is difficult to understand what, if any, ben-

efit the Facility derives from the exemption. Plainly,

if the Facility never accepts hazardous waste for

processing, it would not be subject to regulation as a

TSD facility even absent the exclusion.

Id. at 763, n.12.

The Court also found that the Facility satisfied the

Section 3001(i) requirement that it have adequate con-

tractual safeguards to prevent the acceptance of hazard-

ous waste and adequate notification and inspection pro-

cedures. Jd. at 773, 772. The Court denied Wheelabra-

tor’s motion for summary judgment, however, to give EDF

an opportunity to explore through expedited discovery

“whether and with what frequency the Facility accepts

hazardous waste for processing.” Jd. at 775.

EDF engaged in discovery and ultimately conceded by

Stipulation that it was aware of no evidence that the

Facility accepted hazardous waste from commercial or in-

dustrial sources. Wheelabrator filed a second motion for

summary judgment, EDF stipulated that it would not

oppose entry of judgment in Wheelabrator’s favor, and the

Court entered summary judgment for Wheelabrator on

April 4, 1990.

The Second Circuit affirmed in a unanimous opinion,

adopting Judge Haight’s “thorough and well reasoned

opinion,” and this Court denied certiorari. EDF v.

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

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

The district court in Chicago subsequently issued a de-

cision in complete accord with the Southern District.

6

Environmental Defense Fund vy. City of Chicago, 727

F. Supp. 419 (N.D. Ill. 1989), rev’d, 948 F.2d 345 (7th

Cir. 1991), vacated and remanded, U.S. ——, 113

S. Ct. 486 (1992), adhered to on remand, 985 F.2d 303

(7th Cir.), cert. granted, USS. , 61 U.S.L.W.

3851 (1993).

C. Regulation of Ash Under Subtitle D Is Safe, Envi-

ronmentally Sound, and Promotes Resource Recovery.

1. Ash Is Safely Managed Under Subtitle D.

Two judges in the Seventh Circuit raise the specter of

environmental catastrophe if ash is not regulated as a

hazardous waste. These judges assert that “massive

amounts of hazardous waste” may “seep into the ground

and water table.” EDF v. City of Chicago, 948 F.2d

345, 352 (7th Cir. 1991). This is unsubstantiated hy-

perbole. There is absolutely no evidence in either the

Seventh or Second Circuit cases of any ground or sur-

face water contamination or any other health, safety or

environmental problem resulting from management of

ash.

In fact, several recent studies confirm that ash does not

pose a health threat when disposed in Subtitle D landfills

or monofills.. Moreover, recent studies conclude that

“leachate” (the liquid mixture created when rain or snow

filters through a landfill) from Subtitle D landfills con-

1 Although ash may fail EPA’s iaboratory test for toxicity,

which is intended to duplicate leaching conditions in landfills over

time, actual studies reveal that hazardous constituents, including

lead and cadmium, do not leach from ash at any rate remotely

approaching that predicted by the laboratory method. NUS Cor-

poration on behalf of U.S. Environmental Protection Agency, Doc-

ument No. EPA/530-SW-87-028A, “Final Characterization of Mu-

nicipal Waste Combustion Ashes and Leachates From Municipal

Solid Waste Landfills, Monofills and Codisposal Sites,” Vol. 1 at

7-7 (Oct. 1987) (“The EP toxic procedure extracted significantly

higher levels of metals than were found in the actual leachate.” )

See also Richard W. Goodwin, Defending the Character of Ash, VI

Solid Waste & Power (Sept.-Oct. 1992) at 18, 20.

,

taining ash routinely meets or approaches federal drink-

ing water standards.” Indeed, EPA has consistently

taken the position that ash “can be regulated in a manner

that will be protective of human health and the environ-

ment under RCRA Subtitle D.”* In addition, stringent

new Subtitle D landfill regulations will provide additional

assurance that ash is safely disposed.*

2 Coalition on Resource Recovery and the Environment and NUS

Corporation on behalf of U.S. Environmental Protection Agency,

Document No. EPA/530-SW-90-029A, “Characterization of Munici-

pal Waste Combustion Ash, Ash Extracts, and Leachates” 7-4

(Mar. 1990) (majority of leachate samples from five different Sub-

title D landfills containing ash met federal drinking water stand-

ards for metals). See also Solid Waste Association of North

America and Center for Resource Recovery, Technology and Science,

“Municipal Waste Combustion Ash and Leachate Characteriza-

tion—Monofill Fourth Year Study” 22 (Mar. 1992) (fourth yearly

study of an ash monofill indicates that, except for manganese,

leachate samples met federal drinking water standards for all

analyzed metals).

3 William K. Reilly, Administrator, U.S. Environmental Protec-

tion Agency, “Exemption for Municipal Waste Combustion Ash

From Hazardous Waste Regulation Under RCRA Section 3001(i)”

(Sept. 18, 1992) at 1. (“Reilly Memorandum”).

456 Fed. Reg. 50,978 (1991). These regulations require that

landfills comply with specific “location criteria” to ensure that land-

fills will not be located in certain areas where they could pose a

threat. 40 C.F.R. §§ 258.10-258.16. In addition, the regulations

impose stringent operating restrictions, such as drainage require-

ments, to eliminate discharges of pollutants to surface water. See,

e.g., 40 C.F.R. §§ 258.25, 258.27. New landfills must include liners

and leachate collection systems to prevent releases of pollutants

to ground water. 40 C.F.R. § 258.40. Finally, municipal landfill

operators must monitor groundwater to detect any releases from a

landfill, and if any releases are detected, must clean them up. 40

C.F.R. §§ 258.50-.58. The regulations are due to become effective

for all facilities on October 9, 1993. 56 Fed. Reg. 51,040 (1991).

That deadline remains in place for new landfills and existing land-

fills that accept 100 tons or more per day. EPA has proposed to

extend the deadline to April 9, 1994 for existing small landfills ac-

cepting less than 100 tons per day and meeting certain other

requirements. 58 Fed. Reg. 40,568 (1993).

8

2. The Section 3001(i) Exclusion is One of Several Ex-

clusions of Waste Streams from RCRA Hazardous

Waste Regulation.

Section 3001(i) is not the only statutory or regula-

tory provision excluding waste from Subtitle C regulation

for policy reasons. Other exclusions exist for coal and

other fossil fuel combustion wastes; drilling fluids and

other oil, natural gas and geothermal energy exploration,

development or production wastes; ore and mineral ex-

traction, beneficiation and processing wastes; and cement

kiln dust wastes. 42 U.S.C. §§ 6921(b)(2) and (3).

Congress directed EPA to prepare a Report to Congress

on each of these wastes, to hold hearings, and then to de-

termine whether regulation under Subtitle C is warranted.

42 U.S.C. $$ 6921(b)(2), (3)(A), and (3)(C) and

6982(f), (m), (n), (0), and (p). These exclusions

have continued for many years, some pending the out-

come of the studies, and others because EPA has deter-

mined that regulation under Subtitle C is not appropri-

ate.” In addition, EPA has excluded from hazardous

waste regulation agricultural wastes returned to the soil

as fertilizers; mining overburden returned to the mine

site; certain trivalent chromium wastes; and certain

arsenical-treated wood and wood products. 40 C.F.R.

5Cement kiln dust wastes remain excluded from Subtitle C

regulation pending completion of the study and a regulatory deter-

mination by EPA. For the remaining categories, EPA has deter-

mined that Subtitle C regulation is not appropriate for any of the

wastes considered to date. See 58 Fed. Reg. 42,466 (1993) (deter-

mination that certain coal combustion wastes are not appropriate

for Subtitle C regulation); 53 Fed. Reg. 25,446 (1988) (regula-

tion of certain oil, gas, and geothermal exploration, development,

and production wastes under Subtitle C is unwarranted) ; 58 Fed.

Reg. 15,284 (1993) (clarification of the scope of exploration, de-

velopment and production wastes excluded from Subtitle C regula-

tion) ; 51 Fed. Reg. 24,496 (1986) (regulation of wastes from the

extraction and beneficiation of ores and minerals under Subtitle

C is not warranted); 56 Fed. Reg. 27,300 (1991) (determination

that certain mineral processing wastes are not appropriately regu-

lated under Subtitle C).

9

$§ 261.4(b)(2), (3), (6) and (9) as amended at 57

Fed. Reg. 30,657-58 (1992).

All of these provisions demonstrate that exclusions

from Subtitle C are not unusual; rather, the exclusions

reflect determinations by Congress and EPA that certain

waste streams should not be subject to hazardous waste

regulation for important policy reasons. Indeed, in a reg-

ulatory determination issued two weeks ago, EPA de-

cided not to impose Subtitle C regulation on ash from

coal fired electric utilities, notwithstanding that the ash

at times exhibits levels of lead, cadmium, chromium,

mercury and arsenic that exceed the toxicity charac-

teristic.°

3. Management of Ash Under Subtitle D Promotes the

Policy Objectives of RCRA.

In enacting RCRA in 1976, Congress expressed its

desire to promote resource recovery as well as the safe

management of hazardous wastes. Congress specifically

recognized that resource recovery facilities could contrib-

ute to a solution to solid waste disposal problems in this

country. Two of the stated objectives of RCRA were to

assist states in developing solid waste management plans

“(including resource recovery and resource conservation

systems),” 42 U.S.C. § 6902(1), and to promote “solid

waste management. resource recovery and resource con-

servation systems which preserve and enhance the quality

of air, water, and land resources.”” 42 U.S.C. § 6902(7).

In 1980, Congress passed further amendments to RCRA

in legislation known as the Solid Waste Disposal Act

Amendments of 1980, Pub. L. No. 96-463, 46 Stat. 2055

(1980) (the “SWDA”), reaffirming Congress’s strong

support for the development of resource recovery facili-

658 Fed. Reg. 42,466, 42,476 (1993). EPA noted that regula-

tion of ash from coal combustion under Subtitle C would impose

unnecessary burdens in excess of what is required to protect human

health and the environment, Jd. at 42,477.

10

ties within Subtitle D’s solid waste management frame-

work. For example, the SWDA provided that EPA was

authorized to assist the states in removing or modifying

“legal, institutional, and economic impediments which

have the effect of impeding the development of systems

and facilities to recover energy and materials from mu-

nicipal waste... .” 42 U.S.C. § 6948(d)(3)."

These congressional actions prior to the enactment of

Section 3001(i), along with the clear congressional in-

tent to clarify the scope of the household waste exclusion

in 1984 as it applied to resource recovery facilities, dem-

onstrate that Congress intended to promote resource re-

covery facilities within the framework of Subtitle D. It

would make little sense for Congress to have so carefully

crafted a system to encourage the development of re-

source recovery within the framework of Subtitle D only

to have failed to include the management of ash from

those facilities within that same system.

SUMMARY OF ARGUMENT

Congress enacted—and specifically denominated—Sec-

tion 3001(i) as a clarification of EPA’s regulatory house-

hold waste exclusion. All parties agree that the regu-

latory exclusion excludes the household waste stream,

in all phases of its management, from hazardous waste

regulation, including ash remaining after incineration by

a resource recovery facility.

7 See also 42 U.S.C. §6911(b) (creating interagency coordinat-

ing committee to coordinate all federal agency activities dealing-

with resource conservation and recovery from solid waste); id.

§ 6941 (one of the objectives of Subtitle D program is to assist in

development of methods of waste disposal which maximize the

utilization of energy and materials recoverable from solid waste) ;

id. §6943(c)(1)(B) (states may receive financial assistance un-

der Subtitle D from EPA only if the State program analyzes and

offers recommendations to overcome the impediments to resource

recovery systems and facilities).

11

There was, however, in 1984, some question as to

whether the typical resource recovery facility that ac-

cepted nonhazardous solid wastes from schools, churches,

municipal buildings and the like together with household

waste was covered by the household waste exclusion. It

is this issue to which Congress responded in enacting

Section 3001(i). Congress clarified its original intent to

include such resource recovery facilities within the scope

of the exclusion as long as those facilities adopted new

prophylactic measures to ensure against the receipt and

burning of wastes regulated as hazardous.

Congress expressed its intent through statutory lan-

guage providing that a resource recovery facility shall

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

otherwise managing hazardous wastes” if certain condi-

tions are met. The management of ash from incineration

of waste at a resource recovery facility fits squarely

within this statutory language.

The complete and uncontroverted legislative history of

Section 3001(i), together with the administrative history

of the household waste exclusion, confirm that ash from

a resource recovery facility meeting the requirements of

Section 3001(i) is excluded from Subtitle C regulation.

Any other reading would, as the Second Circuit unani-

mously affirmed, deprive the statute of any meaning.

EDF goes through tortured statutory construction and

ignores clear !»yislative purpose to achieve the result that

its policy predilections favor. EDF cannot, however, ulti-

mately ignore that its argument turns on its head a statu-

tory provision that was designed to encourage, with new

environmental safeguards, resource recovery as an im-

portant solid waste disposal option.

12

ARGU MENT

I. THE SEVENTH CIRCUIT ERRED IN HOLDING

THAT SECTION 3001(i) OF RCRA DOES NOT EX-

CLUDE ASH FROM REGULATION AS A HAZARD-

OUS WASTE.

It is a cardinal rule of statutory co:s<rction that stat-

utes are to be read “as a whole, since we meaning of

Statutory language, plain or not, depends on context.”

Conroy v. Aniskoff, US. , 113 S. Ct. 1562,

1565 (1993) (citations omitted). Statutory terms should

be interpreted on the basis of the meaning that is “(1)

most in accord with context and ordinary usage, and thus

most likely to have been understood by the whole Con-

gress which voted on the words of the statute (not to

mention the citizens subject to it), and (2) most com-

patible with the surrounding body of law into which the

provision must be integrated ... .” Green v. Bock Laun-

dry Mach. Co., 490 U.S. 504, 528 (1989) (Scalia, J.,

concurring in the judgment) (emphasis in original). In

this case, Congress specifically enacted and designated

Section 3001(i) as a “clarification” of EPA’s pre-existing

household waste exclusion. Upon examination of that

exclusion, the plain language of Section 3001(i), and the

issue that Congress enacted Section 3001(i) to “clarify,”

it is clear that Section 3001(i) excludes ash from regula-

tion as a hazardous waste under RCRA.

A. The 1980 Household Waste Exclusion that was

“Clarified” by Section 3001(i) Excludes from Regu-

lation as Hazardous Waste Ash from RRFs that

Burn Only Household Waste.

When Congress enacted RCRA in 1976, it delegated to

EPA the task of defining by regulation those wastes that

would be subject to the requirements of Subtitle C rather

than the Subtitle D requirements applicable to nonhazard-

ous solid wastes. 42 U.S.C. § 6921. Congress did not,

however, leave EPA entirely without guidance; it ex-

pressed its intent that all household and general municipal

13

wastes should be excluded from hazardous waste regu-

lations. The Report of the Senate Committee on Public

Works accompanying the legislation that eventually be-

came RCRA explicitly stated that the hazardous waste

permit program “is not to be used to control the disposal

of hazardous substances used in households or to extend

control over general municipal wastes based on the pres-

ence of such substances.” S. Rep. No. 988, 94th Cong.,

2d Sess. 16 (1976).

In its first set of final regulations implementing RCRA,

issued in May 1980, EPA responded to this expression of

congressional intent by promulgating a provision known

as the “household waste exclusion.” 45 Fed. Reg. 33,120

(1980). That regulation provided in pertinent part as

follows:

§ 261.4 Exclusions

(b) Solid wastes which are not hazardous wastes.

The following solid wastes are not hazardous wastes:

(1) Household waste, including household waste that

has been collected, transported, stored, treated, dis-

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

used. “Household waste” means any waste material

(including garbage, trash and sanitary wastes in

septic tanks) derived from households (including

single and multiple residences, hotels and motels).

Id. (codified as amended at 40 C.F.R. § 261.4(b)(1)).

EPA stated unequivocally in the preamble to this regu-

lation (the “1980 Preamble”) that the entire household

waste stream is excluded from hazardous waste regulation

and that ash residue from the incineration of household

waste is also excluded from hazardous waste regulation:

The Senate language makes it clear that household

waste does not lose the exclusion simply because it

has been collected. Since household waste is ex-

cluded in all phases of its management, residues re-

maining after treatment (e.g., incineration, thermal

treatment) are not subject to regulation as hazardous

14

waste. Such wastes, however, must be transported,

stored, treated and disposed in accord with appli-

cable State and federal requirements concerning man-

agement of solid waste... .

Id. at 33,099 (emphasis added). EPA further justified its

determination that ash from the incineration of house-

hold waste is excluded from regulation on the ground that

Congress intended to “exclude waste streams generated

by consumers at the household level.” Jd. at 33,099

(emphasis in original). Thus, EPA exempted household

waste during all phases of its management, from orig-

ination in households, through treatment by RRFs, to

ultimate disposal by landfilling the ash residue.

The 1980 Preamble language is critical because it

clearly refutes EDF’s and the Seventh Circuit's central

contention that the statutory language of Section 3001 (i)

—“a resource recovery facility . . . shall not be deemed

to be treating, storing, disposing of, or otherwise man-

aging . . ."—does not encompass what EDF characterizes

as the “generation” of ash by the RRF. Even EDF con-

cedes that the original administrative exclusion would

apply to ash from RRFs that accept and burn only house-

hold waste. Appellant’s Brief at 27, EDF v. Wheel-

abrator, 931 F.2d 211 (2d Cir. 1991) (No. 90-7437);

Appellants’ Brief at 27, EDF v. City of Chicago, 948

F.2d 345 (7th Cir. 1991) (No. 90-3060). Nevertheless,

neither the regulatory text, nor the preamble to the very

household waste exclusion that was clarified in Section

3001(i) contains the term “generation.” EDF does not

and cannot explain why, under its theory, the absence of

the term “generation” in the 1980 household waste ex-

clusion is not important. yet the absence of that term in

the language of 3001 (i) is so critical.

Moreover, the 1980 Preamble demonstrates that the

term “otherwise managing” in Section 3001(i) includes

management of ash.” The Preamble provides that house-

® Section 3001(i) also contains the terms “storing” and “dis-

posing,” which, as discussed in the next section, can easily be

15

hold waste is excluded in “all phases of its management,”

with “residues remaining” after “incineration” specific-

ally defined as a covered “phase.” Accordingly, ash is

not subject to regulation as hazardous waste because it is

part of the “management” of the household waste stream

generated by consumers at the household level.

EPA thus established an exclusion applicable to the

entire household waste stream—as even EDF concedes.

Appellant’s Brief at 27, Wheelabrator (No. 90-7437);

Appellants’ Brief at 27, City of Chicago (No. 90-3060).

It is this exclusion that Congress addressed in 1984 by

enacting Section 3001 (i), clarifying that the exclusion ap-

plied not only to ash resulting from the incineration of

household waste, but also to ash generated by RRFs from

the incineration of household waste and nonhazardous

commercial and industrial solid waste, which waste is

similar in composition to wastes generated by households.

See William K. Reilly, Administrator, U.S. Environmental

Protection Agency, “Exemption for Municipal Waste

Combustion Ash From Hazardous Waste Regulation

Under RCRA Section 3001(i)” (Sept. 18, 1992) at 2

(“Reilly Memorandum” ).’

B. The Plain Language of Section 3001(i) Excludes

the Management of Ash from Hazardous Waste

Regulation.

Virtually all RRFs accept municipal solid waste com-

posed of waste from households as well as nonhazardous

interpreted to include the storing of ash on-site at the RRF and

disposal of ash in a landfill.

* The 1984 statutory clarification was not the first such clarifi-

cation of the household waste exclusion. EPA amended this pro-

vision in 1984 to include several additional categories of wastes

that were similar enough to be treated as “household waste,” in-

cluding wastes from bunkhouses, ranger stations, crew quarters,

campgrounds, picnic grounds, and day-use recreation areas. See

49 Fed. Reg. 44,978 (1984).

16

solid waste from sources such as schools, restaurants, mu-

nicipal and private office buildings, small businesses and

the like. While it was clear, as discussed above, that

ash from an RRF that accepted only household waste

was excluded from regulation under the household waste

exclusion, there was some uncertainty in 1984 as to the

status of the typical facility that accepted wastes similar

to, but from sources other than, households, It is this

uncertainty to which Congress responded when it enacted

Section 3001(i) “clarifying” that the household waste

exclusion applies to RRFs that accept such nonhazardous

commercial and industrial waste as long as certain prophy-

lactic procedures are in place. The statute provides:

Clarification of Household Waste Exclusion.

A resource recovery facility recovering energy from

the mass burning of municipal solid waste shall not

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

otherwise managing hazardous wastes for the pur-

poses of regulation under this subchapter, if—

(1) such facility—

(A) receives and burns only

(i) household waste (from single and

multiple dwellings, hotels, motels, and

other residential sources), and

(ii) solid waste from commercial or indus-

trial sources that does not contain

hazardous waste identified or listed

under this section, and

(B) does not accept hazardous wastes identified

or listed under this section, and

(2) the owner or operator of such facility has es-

tablished contractual requirements or other ap-

propriate notification or inspection procedures

to assure that hazardous wastes are not re-

ceived at or burned in such facility.

42 U.S.C. § 6921(i).

17

The statute plainly excludes all waste management ac-

tivities of an RRF, including the management of ash,

from hazardous waste regulation under RCRA. By using

the all-encompassing language “treating, storing, dispos-

ing of, or otherwise managing hazardous wastes,” Con-

gress expresed its intent that all activities of a qualifying

RRF are excluded from hazardous waste regulation, and

it did so by using essentially the same language found in

EPA's original household waste exclusion and the pre-

amble discussion of that exclusion. As the Solicitor Gen-

eral put it in its brief for the United States supporting

Chicago’s petition for certiorari:

Indeed, Section 3001(i)’s express provision that a

qualifying resource recovery facility “shall not be

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

wise managing hazardous wastes” strongly suggests

that EPA’s household waste exclusion applies to all

facets of the facility’s operations, including inciner-

ation, pre- and post-incineration storage, and dis-

posal of residues.

Brief of the United States as Amicus Curiae at 15, City

of Chicago v. EDF, U.S. , 113 S. Ct. 486

(1992) (No. 91-1328).

1. The statutory term “otherwise managing haz-

ardous wastes” includes the management of ash.

The term “otherwise managing hazardous wastes” is

not specifically defined under RCRA, but there can be

little doubt as to its breadth as used in Section 3001(i).

First, and foremost, because Congress was, in enacting

Section 3001(i), clarifying ithe 1980 household waste ex-

clusion, Congress was clearly aware that the term “man-

agement” or “managing,” in the context of household

waste, had a well-defined meaning which included “resi-

dues remaining after treatment” of waste. Congress, in

other words, used the same language in Section 3001 (i)

as EPA used in 1980 to define the scope of the household

waste exclusion. If Congress wanted to depart from the

scope of EPA’s exclusion, it could have expressly nar-

rowed that language.

18

Moreover, “management” is also the broadest activity

described in Subtitle C; it comprises the entire range of

activities relating to hazardous waste. Subtitle C, of

which Section 3001(i) is a part, is entitled “Hazardous

Waste Management” and includes sections dealing with

identification and listing, 42 U.S.C. § 6921; generation,

42 U.S.C. § 6922; transportation, 42 U.S.C. § 6923; and

treatment, storage and disposal of hazardous waste, 42

U.S.C. $$ 6924, 6925. The common sense reading of the

phrase “or otherwise managing” is that it was intended to

incorporate all these activities.

The term “hazardous waste management,” although

not identical to the phrase “otherwise managing hazardous

wastes” in Section 3001(i). also supports this construc-

tion. It is defined broadly as “the systematic control of

the collection, source separation, storage, transportation,

processing, treatment, recovery, and disposal of hazard-

ous wastes.” 42 U.S.C. § 6903(7). “Hazardous waste

management” covers what an RRF does with ash. The

facility collects, stores, transports and disposes of the ash

in a landfill.

2. The statutory terms “disposing” and “storing”

encompass the activities of a resource recovery

facility regarding ash.

The term “disposal” is also broadly defined in RCRA

as “the discharge, deposit, injection, dumping, spilling,

leaking, or placing of any solid waste or hazardous waste

into or on any land or water... .” 42 U.S.C.

§ 6903(3). This definition of “disposal” confirms the

natural reading of the statute that the activity of placing

ash residue into a landfill constitutes an excluded disposal

activity under Section 3001(i). In the context of the

operation of a resource recovery facility, placing ash in

a landfill clearly fits within the meaning of the term “dis-

posing” because the principal purpose of such a facility 1s

to reduce the volume of solid waste by processing it to an

ash residue prior to disposal.

The term “storage,” when used in connection with

hazardous waste, is defined in RCRA as “the containment

19

of hazardous waste, either on a temporary basis or for

a period of years, in such a manner as not to constitute

disposal... .” 42 U.S.C. § 6903(33). The inclusion of

the term “storing” in Section 3001(i) can be read to

encompass the ash handling practices at an RRF. Ash is

accumulated, collected, and stored at an RRF prior to

ultimate disposal in a landfill or beneficial reuse. Thus,

by including the terms “storing” and “disposing” in the

household waste exclusion, Congress meant to exclude

from Subtitle C those activities of an RRF accompany-

ing the handling of ash.

3. EDF’s reading of Section 3001(i) renders the

statutory language meaningless.

EDF makes two arguments regarding the plain mean-

ing of the statutory language. First, EDF argues that

Section 3001(i) merely exempts an RRF from being

deemed a hazardous waste TSD facility for the receipt of

hazardous wastes coming into the facility. Appellants’

Brief at 25, City of Chicago (No. 90-3060); Appellant’s

Brief at 25, Wheelabrator (No. 90-7437). Second, EDF

claims that RRFs “generate” the ash residue, and, since

the statute does not specifically include the term “gen-

erating,” it does not cover ash. /d. Both of these argu-

ments are meritless.

EDF’s first argument renders the statute meaningless.

Section 3001(i), by its very terms, allows a facility to

accept only household wastes and commercial and indus-

trial wastes that are nonhazardous. Section 3001(i) does

not apply to any facility that accepts waste that is regu-

lated as hazardous. Because household waste has been

excluded from regulation as hazardous since 1980, and

because an RRF is not entitled to the benefit of Section

3001(i) if it accepts other wastes that are regulated as

hazardous, EDF’s argument deprives the statute of any

meaning. As the Southern District held:

Under [EDF’s] construction of Section 3001(i) it is

difficult to understand what, if any, benefit the Fa-

cility derives from the exemption. Plainly, if the

20

Facility never accepts hazardous waste for process-

ing, it would not be subject to regulation as a TSD

facility even absent the exclusion.

725 F. Supp. at 763, n.12.

The Seventh Circuit made the same mistake as EDF

when the majority stated cavalierly and without citation

or foundation (because there is none):

Actually, Congress was interested in excluding

from the extremely complex regulations that apply

to facilities that specifically target hazardous waste

municipal incinerators that inadvertently process

hazardous materials that slip in with all the other

junk.

948 F.2d at 347. In fact, there is not a shred of evi-

dence that this was Congress’s intent, and, more impor-

tantly, there is overwhelming evidence, discussed in the

next section, that Congress’s intent was, as all judges but

two in the Seventh Circuit have held, to broaden the ap-

plicability of the household waste exclusion to RRFs that

process nonhazardous waste from commercial and in-

dustrial sources together with household waste.

EDF’s argument regarding the term “generating” is

also meritless. As noted above, nowhere does the regu-

latory household waste exclusion mention “generation,”

but all parties—including EDF—agree that the regula-

tory exclusion covers the management of ash. Indeed,

there was no need to include the term “generating” in

Section 3001(i) for several reasons. First, the household

waste exclusion covered ali phases of management of

the household waste stream, including management of

ash, and because Congress was merely clarifying the ap-

plicability of that exclusion in 1984, there was no need to

explicate any further what was already self-evident from

the language and administrative history of the exclusion.

In addition, Congress may very well have felt that, as

discussed above, management of ash was covered by the

other statutory terms it used. As the Solicitor General

put it:

21

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

facility shall not be deemed to be “generating” haz-

ardous wastes does not undermine [the conclusion

that the statute applies to all facets of the facility’s

operations]. The absence of that term likely reflects

Congress’s understanding that resource recovery op-

erations involving conversion of solid waste to energy

are comprehensively described by the collective terms

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

6903(7) and (34) (defining hazardous waste man-

agement and treatment).

United States’ Brief at 15, City of Chicago (No.

91-1328).

In short, reading the statute as a whole, and in accord

with the meaning that is most in harmony with its con-

text and the ordinary meaning of its terms, ash is ex-

cluded from regulation as a hazardous waste under Sec-

tion 3001 (i).

C. The Legislative History of Section 3001(i) Con-

firms That Congress Excluded Ash from Regulation

as a Hazardous Waste at Resource Recovery Facil-

ities Complying with the Requirements of the Ex-

clusion.

The unambiguous and incontrovertible legislative his-

tory of Section 3001(i), contained in the Senate Report

that was adopted in total in the Conference Report,

clearly confirms that Congress excluded ash from regula-

tion as a hazardous waste at facilities meeting the re-

quirements of the statute. As an initial matter amici are

aware that under some circumstances some members of

this Court have cautioned against use of legislative his-

tory to aid in statutory construction because of the in-

herent difficulty in determining Congressional “intent”

and because of other perceived abuses use of such history

entails.” Other justices have followed the more tradi-

10 Blanchard v. Bergeron, 489 U.S. 87, 99 (1989) (Sealia, J.,

concurring in part and concurring in the judgment) ; Public Citizen

v. United States Dept. of Justice, 491 U.S. 440, 474-75 (1989)

(Kennedy, J., concurring in the judgment).

22

tional view that legislative history is useful to confirm the

plain meaning of a statute, to help interpret an ambiguous

statute, or to ensure that a literal reading of the plain

meaning does not lead to a result that Congress could

not have intended.”

In no event does this case involve an undisciplined use

of legislative history. To the contrary, use of such history

is particularly appropriate here. First, amici set forth

below the entire legislative history of Section 3001(i);

this is not a case where a litigant selectively quotes “snip-

pets of analysis,” '* nor is it an instance where, in the

words of Judge Harold Leventhal, a litigant looks out

over a “crowd” of legislative history in search of

“friends.”

11 See e.g., Conroy Aniskoff, —— U.S. , 118 S. Ct. 1562,

1565-66 (1993) (Stevens, J.) (using legislative history to confirm

interpretation of the plain language of the Soldiers’ and Sailors’

Relief Act of 1940); Browning-Ferris Indus. v. Kelco Disposal,

Inc., 492 U.S. 257 (1989) (Blackmun, J.) (using legislative history

of eighth amendment to determine that Excessive Fines Clause does

not cover punitive damages in civil suits); Texas State Teachers

Assoc. v. Garland Indep. School Dist., 489 U.S. 782, 790-91 (1989)

(O’Connor, J.) (using legislative history to interpret meaning

of term “prevailing party” for purposes of obtaining attorneys

fees under § 1988); Bowen v. Georgetown Univ. Hosp., 488 U.S.

204, 214-15 (1989) (Kennedy, J.) (interpreting ambiguous pro-

vision of the Medicare Act and using legislative history directly

on point to resolve the issue); Local Union 1261 v. Federal Mine

Safety Commission, 917 F.2d 42, 44-46 (D.C. Cir. 1990) (Ginsburg,

J.) (noting that the meaning of language in the Federal Mine

Safety and Health Act providing compensation for mines closed

by federal safety inspectors was not “plain” and reviewing the

legislative history for guidance); Patricia M. Wald, The Sizzling

Sleeper: The Use of Legislative History in Construing Statutes in

the 1988-89 Term of the United States Supreme Court, 39 Am.

U.L. Rev. 277, 286-300 (1990).

12 See Blanchard v. Bergeron, 489 U.S. at 99 (Scalia, J., con-

curring in part and concurring in the judgment) (Judges should

not give legislative force to each snippet of analysis found in com-

mittee reports).

18 Conroy v. Aniskoff, ——— U.S. ——, 113 S. Ct, at 1567 (citing

J. Leventhal).

23

Second, as shown below, the legislative history in this

instance directly addresses Congress’s intent in enacting

Section 3001 (i); * it is contained in a Senate Report that

was adopted as the Conference Report;*® and it is un-

disputed—there are no competing contemporaneous re-

ports, floor statements or the like.

Finally, all justices of this Court agree that legislative

history may be used to interpret the meaning of a statu-

tory term that is “most compatible with the surrounding

body of law into which the provision must be integrated.”

Green v. Bock Laundry Machine Co., 490 U.S. at 528

(Scalia, J., concurring in the judgment). Here, the legis-

lative history confirms that, as discussed above, EDF's

and the Seventh Circuit’s reading of Section 3001(i)

turns the statute entirely on its head—a amendment that

was intended to promote resource recovery by broadening

the applicability of the household waste exclusion is held

instead to create impediments to resource recovery by

narrowing it. The dual goals of RCRA in general and

Section 3001(i) in particular—protecting the environ-

ment and promoting resource recovery—are completely

incompatible with EDF’s reading that ash must be subject

to costly and unnecessary Subtitle C regulation.

it Pacific Gas & Electric Co. v. State Energy Resources, Con-

servation & Dev. Comm’n, 461 U.S. 190, 222 (1983) (relying on

House Committee Report directly addressing preemption issue to

decide preemption question).

15 Conference committee reports are generally considered the

most reliable forms of legislative materials. See Thornburg v.

Gingles, 478 U.S. 30, 44 n.7 (1986) (noting that “[wJe have re-

peatedly recognized that the authoritative source for legislative

intent lies in the Committee Reports on the bill.”). See also,

George A. Costello, Average Voting Members and Other “Benign

Fictions”: the Relative Reliability of Committee Reports, Floor

Debates, and Other sources of Legislative History, 1990 Duke L.J.

39, 41-48 (1990).

24

1. The Senate Report provisions addressing Section

3001(i), which were adopted in total in the Con-

ference Report, confirm that ash is excluded

from regulation as a hazardous waste.

The Senate Report for Section 3001(i) first indicates

precisely Congress's intent to clarify the scope of the

household waste exclusion for RRFs. The Report also

confirms that EPA’s household waste exclusion was es-

tablished to exclude waste streams generated by house-

holds and by sources whose wastes are similar to house-

holds as stated in the 1980 Preamble:

The reported bill adds a subsection (d) [sic] to sec-

tion 3001 to clarify the coverage of the household

waste exclusion with respect to resource recovery fa-

cilities recovering energy through the mass burning

of municipal solid waste. This exclusion was promul-

gated by the Agency [EPA] in its hazardous waste

management regulations established to exclude waste

streams generated by consumers at the household

level and by sources whose wastes are sufficiently

similar in both quantity and quality to those of house-

holds.

S. Rep. No. 284, 98th Cong., Ist Sess. 61 (1983) (see

Appendix at la-2a).

The Senate Report then acknowledges the reason for

the enactment of Section 3001(i)—that RRFs accept

nonhazardous wastes from sources other than households,

and that it is important to encourage such facilities and

to remove statutory or regulatory ambiguities that may

hinder their development:

Resource recovery facilities often take in such “house-

hold wastes” mixed with other, non-hazardous waste

streams from a variety of sources other than “house-

holds.” including small commercial and industrial

sources, schools, hotels, municipal buildings, churches,

etc. It is important to encourage commercially viable

resource recovery facilities and to remove impedi-

ments that may hinder their development and

operation.

Id.

25

The Report then sets forth the specific intent of Sec-

tion 3001 (i), namely that it:

. . Clarifies the original intent to include within the

household waste exclusion activities of a resource re-

covery facility which recovers energy from the mass

burning of household waste and non-hazardous waste

from other sources.

Id. (emphasis added). The phrase “activities of a re-

source recovery facility” includes all activities; it is not

limited, as EDF would have it, to only some activities of

an RRF. Moreover, the Report clearly states that it was

Congress’s original intent to include such activities within

the scope of the exclusion, and Section 3001(i) is merely

clarifying that original intent.

Finally, the Report concludes that all waste manage-

ment activities of the RRF are excluded from hazardous

waste regulation, including the term “generation” to

which EDF and the Seventh Circuit ascribe such im-

portance.

All waste management activities of such a facility, in-

cluding the generation, transportation, treatment,

storage and disposal of waste shall be covered by the

exclusion, if the limitations in paragraphs (1) and

(2) of subsection (d) [sic] are met.

Id." The Conference Committee adopted, without

change, the provision proposed by the Senate.’’ This leg-

©The Senate Report also provides that a facility that has in

place the precautionary measures against unintended acceptance

of hazardous waste should not be penalized for the “occasional,

inadvertent receipt and burning of hazardous material” from

commercial or industrial sources. /d.

7 SECTION 223—CLARIFICATION OF HOUSEHOLD WASTE

EXCLUSION

House Bill.—No provision.

Senate amendment.—The Senate amendment clarifies that an

energy recovery facility is exempt from hazardous waste re-

quirements if it burns only residential and non-hazardous

26

islative history confirms that ash from RRFs that meet

the requirements of Section 3001(i) will not be regulated

as a hazardous waste. As the Southern District held, the

“Senate Report could not be more explicit.” 725 fF. Supp.

at 765.

2. The Seventh Circuit majority and EDF misread

the legislative history of Section 3001(i).

Two judges in the Seventh Circuit reference only the

one line from the Senate Report that mentions the word

“generation” and conclude that they will not “rely upon

a single word in a committee report that did not” make

its way into the statutory language. City of Chicago, 948

F.2d at 351. The flaw in this reasoning is that it ignores

entirely the rest of the Senate Report in which Congress

explains in detail the scope and purpose of the 1984

exclusion. The legislative history does not consist of only

“one word.”

EDF argued in the Second Circuit that the legislative

history demonstrates that Congress rejected “a waste

stream exemption in favor of an exemption of specific

and limited activities,” or, put slightly differently, that

Congress abandoned EPA’s “expansive ‘waste stream’ ap-

proach in favor of a narrower exclusion.” Appellant's

Brief at 20. 26, Wheelabrator (No. 90-7437); Appel-

lants’ Brief at 20, 26, City of Chicago (No. 90-3060).

This argument is made up out of whole cloth. There is

no support for it in the language or legislative history of

commercial wastes and establishes procedures to assure haz-

ardous wastes will not be burned at the facility.

Conference substitute——The Conference substitute is the

same as the Senate amendment.

H.R. Conf. Rep. No. 1133, 98th Cong., 2nd Sess. 79, 106 (1984),

reprinted in 1984 U.S.C.C.A.N. 5649, 5677.

18 See Mead Corp. v. B.E. Tilley, 490 U.S. 714, 723 (1989) (noting

that the deletion of a single word, the word “accrued,” in Confer-

ence Committee amendments did not evince “an intent to require

the provision of unaccrued as well as accrued benefits”; the Court

interpreted the statute to apply only to accrued benefits despite

the omission of that term).

27

the statute. To the contrary, the Senate Report, adopted

as the Conference Report. expressly states that other non-

hazardous “waste streams” should be included within the

scope of the exclusion. S. Rep. No. 284, 98th Cong., Ist

Sess. 61 (1983). Indeed, as the Southern District put

it, “Nowhere in the 1984 exclusion, nor in the Committee

report which accompanied it, is there any hint of a con-

gressional intent to limit the scope of that earlier [house-

hold waste] exclusion.” 725 F. Supp. at 765.

If Congress had intended to exempt a narrower set of

activities under Section 3001(i) than household waste

“in all phases of its management” as provided in the 1980

Preamble, Congress would undoubtedly have said so in

order to ensure that there would be no confusion between

the regulatory and statutory exclusions. Congress did not

do so.

Instead, Congress chose explicitly to “clarify” that an

existing regulatory exclusion should apply to an impor-

tant category of plants—resource recovery facilities—that

burn household and similar wastes, as long as those facili-

ties complied with new prophylactic requirements. This

is not, in other words, a case in which the Court must

Struggle to interpret the meaning of congressional failure

to address an agency’s interpretation of a rule; rather,

this is a case in which Congress stated unequivocally its

intent to affirm an agency rule, and to clarify that the

rule—which clearly covered management of ash—should

be applied to RRFs that accept nonhazardous municipal

wastes together with household wastes.

19 See Young v. Community Nutrition Inst., 476 U.S. 974, 983

(1986) (quoting NLRB v. Bell Aerospace Co., 416 U.S. 267, 275

(1974) (“congressional failure to revise or repeal the agency’s

interpretation is persuasive evidence that the interpretation is the

one intended by Congress”). Cf. Haig v. Agee, 453 U.S. 280, 297

(1981) (holding that Congress adopted an administrative construc-

tion in a reenacted statute where Congress used the same language

as the previous statute and legislative history revealed that Con-

gress was aware of a longstanding administrative interpretation

of that provision).

28

In addition, EDF and the Seventh Circuit’s analysis

would lead to the anomalous result that ash from incin-

erators, including RRFs, that accept only household waste

is excluded from regulation as a hazardous waste, while

ash from RRFs that process the same type of waste

streams and that meet the contractual, inspection and

notification requirements of Section 3001(i) is not ex-

cluded from Subtitle C. There is no support for this

reading in the language or legislative history of the stat-

ute, and in fact, such a reading is precisely the opposite

of what Congress intended. EDF’s reading would, to use

the words of the Senate Report, “discourage” rather than

“encourage” commercially viable RRFs, and it would

“create” rather than “remove” impediments that may

hinder the development and operation of RRFs.

Finally, EDF argues that the 1984 Hazardous and

Solid Waste Amendments universally broadened the ‘reach

of the RCRA program by requiring more wastes to be

regulated as hazardous and by imposing more stringent

requirements on hazardous waste regulation, and thus

Section 3001(i) must be read as a narrowing of the

household waste exclusion. See Appellants’ Brief at 27-

30, City of Chicago (No. 90-3060): Appellant’s Brief at

27-30, Wheelabrator (No. 90-7437).” Congress did not,

however, make less stringent the regulation of RRFs in

1984; it merely clarified that Congress had always intended

the household waste exclusion to extend to a broader cate-

gory of RRFs that received and burnec nonhazardous

commercial and industrial wastes. Moreover, Congress

imposed additional restrictions on RRFs that were not

previously embodied in the household waste exclusion.

20 EDF virtually ignored, however, both the legislative and regu-

latory history of Section 3001(i) and the history of Congress’

expressed desire to promote resource recovery facilities. EDF’s

agrument is therefore irrelevant. See Board of Governors of Fed-

eral Reserve System v. Dimension Finance Corp., 474 U.S. 361, 373-

74 (1986) (“Application of ‘broad purposes’ of legislation at the

expense of specific provisions ignores the complexity of the prob-

lems Congress is called upon to address and the dynamics of legis-

lative action”).

29

In order to be eligible for the exclusion, RRFs must have

adequate contractual arrangements, inspection procedures,

or other notification requirements to ensure that hazardous

waste is not received and burned. 42 U.S.C. § 6921(i)(2).

Section 3001(i) did not, in other words, relax existing

requirements, but rather clarified their scope and imposed

additional restrictions.

II. EPA INTERPRETS THE STATUTE TO EXCLUDE

ASH FROM REGULATION AS A HAZARDOUS

WASTE AT QUALIFYING RESOURCE RECOVERY

FACILITIES.

An agency’s construction of the statute it administers

is Only consulted when Congress’s intent regarding the

provision at issue is unclear. Where Congress has di-

rectly addressed the point at issue, and its intent is clear

from the plain meaning of the statute and the legislative

history, deference to an agency interpretation is not re-

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

fense Council, Inc., 467 U.S. 837, 842-43 (1974). As

set forth above, Congress directly excluded ash from reg-

ulation as a hazardous waste. Therefore, any interpre-

tation by EPA contradicting Congress’s express intent

would be entitled to no deference. United States v. River-

side Bayview Homes, Inc., 474 U.S. 121, 131 (1985).

However, in the Reilly Memorandum EPA takes the

formal position that the statutory language and legislative

history of Section 3001(i) support the interpretation that

the exclusion covers ash. Reilly Memorandum at 1.” The

Reilly Memorandum cites policy considerations, including

protecting the environment, promoting resource recovery

from nonhazardous solid waste, promoting energy recov-

ery, and reducing the volume of wastes disposed of in

21 The Reilly Memorandum explicitly invalidated all prior EPA

positions on ash from RRFs. Reilly Memorandum at 1. Thus,

EDF’s strenuous reliance on the preamble to EPA’s 1985 regula-

tion in all its briefs in this and the Second Circuit cases is no

longer valid. See, e.g., Appellant’s Brief at 32, Wheelabrator (No.

90-7437) ; Appellants’ Brief at 32, City of Chicago, (No. 90-3060),

citing 50 Fed. Reg. 28,702, 28,725-26 (1985).

30

landfills, to support its view that ash is not subject to

regulation under Subtitle C. Reilly Memorandum at 5-6.

Accordingly, EPA’s formal position on the regulatory

status of ash is in full harmony with the statutory lan-

guage and legislative intent.

CONCLUSION

For all the reasons discussed above, the Seventh Cir-

cuit’s decision should be reversed, and this Court should

hold that ash is not subject to regulation as a hazardous

waste under RCRA. The entire “household” waste stream,

together with nonhazardous waste from other sources that

is similar in composition to household waste, is exempt

from the moment it is put out on the curb until it is

ultimately disposed of as ash residue from an RRF.

Respectfully submitted,

MARK P. PAUL HAROLD HIMMELMAN

Vice President and General Counsel of Record

Counsel DAVID M, FRIEDLAND

WHEELABRATOR MARGARET LATTIN BAZANY

TECHNOLOGIES INC. BEVERIDGE & DIAMOND, P.C.

Liberty Lane 1350 I Street, N.W., Suite 700

Hampton, NH 03842 Washington, D.C. 20005

(603) 929-3000 (202) 789-6000

INTEGRATED WASTE SERVICES

ASSOCIATION

1133 21st Street, N.W.

Suite 205

Washington, D.C. 20036

(202) 467-6240

Attorneys for Amici

August 19, 1993

la

APPENDIX

S. Rep. No. 284, 98th Cong., Ist Sess. 61 (1983)

i * * *

[61] CLARIFICATION OF HOUSEHOLD WASTE EXCLUSION

The reported bill adds a subsection (d) to section

3001 to clarify the coverage of the household waste ex-

clusion with respect to resource recovery facilities recov-

ering energy through the mass burning of municipal solid

wasie. This exclusion was promulgated by the Agency

in its hazardous waste management regulations established

to exclude waste streams generated by consumers at the

household level and by sources whose wastes are suffi-

ciently similar in both quantity and quality to those of

households.

Resource recovery facilities often take in such “house-

hold wastes” mixed with other, non-hazardous waste

streams from a variety of sources other than “households,”

including small commercial and industrial sources, schools,

hotels, municipal buildings, churches, etc. It is important

to encourage commercially viable resource recovery facil-

ities and to remove impediments that may hinder their

development and operation. New section 3001(d) clari-

fies the original intent to include within the household

waste exclusion activities of a resource recovery facility

which recovers energy from the mass burning of house-

hold waste and non-hazardous waste from other sources.

All waste management activities of such a facility,

including the generation, transportation, treatment, stor-

age and disposal of waste shall be covered by the exclu-

sion, if the limitations in paragraphs (1) and (2) of

subsection (d) are met. First, such facilities must receive

and burn only household waste and solid waste from

other sources which does not contain hazardous waste

identified or listed under section 3001.

Second, such facilities cannot accept hazardous wastes

identified or listed under section 3001 from commercial

2a

or industrial sources, and must establish contractual re-

quirements or other notification or inspection procedures

to assure that such wastes are not received or burned.

This provision requires precautionary measures or pro-

cedures which can be shown to be effective safeguards

against the unintended acceptance of hazardous waste.

If such measures are in place, a resource recovery facility

whose activities would normally be covered by the house-

hold waste exclusion should not be penalized for the

occasional, inadvertent receipt and burning of hazardous

material from such commercial or industrial sources. Fa-

cilities must monitor the waste they receive and, if neces-

sary, revise the precautionary measures they establish to

assure against the receipt of such hazardous waste.