Amicus Curiae Brief — Chicago v. Environmental Defense Fund

No. 92-1639 * AUG 19 1993

: CE OF MME Gle

Lette.

IN THE :

Supreme Court of the United States

OCTOBER TERM, 1993

CITy OF CHICAGO, et al.,

. Petitioners,

ENVIRONMENTAL DEFENSE FUND, INC., ef al..

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF OF THE NATIONAL LEAGUE OF CITIES,

U.S. CONFERENCE OF MAYORS, NATIONAL

GOVERNORS’ ASSOCIATION, INTERNATIONAL

CITY/COUNTY MANAGEMENT ASSOCIATION,

NATIONAL ASSOCIATION OF COUNTIES, COUNCIL

OF STATE GOVERNMENTS, AND NATIONAL

INSTITUTE OF MUNICIPAL LAW OFFICERS

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

DAVID R. BERZ RICHARD RuDA *

DAVID B. HIRD Chief Counsel

FRANK PANOPOULOS JAMES I. CROWLEY

WEIL, GOTSHAL & MANGES STATE AND LOCAL LEGAL CENTER

1615 L Street, N.W. 444 North Capitol St., N.W.

Washington, D.C. 20036 Suite 345

(202) 682-7000 Washington, D.C. 20001

Of Counsel (202) 434-4850

* Counsel of Record for the

Amici Curiae

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

ST AVAILABLE COPY

QUESTION PRESENTED

Whether Section 3001(i) of the Resource Conserva-

tion and Recovery Act, 42 U.S.C. § 6921(i), which

provides that a “resource recovery facility recovering

energy from the mass burning of municipal solid waste

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

or otherwise managing hazardous waste,” exempts from

hazardous waste regulation the ash residue remaining

from the burning of municipal solid waste at such a

facility.

(i)

TABLE OF CONTENTS

Page

TR i

TABLE OF AUTHORITIES et eliaaiatialiataaicieaitaes v

INTEREST OF THE AMICI CURIAE is 1

INTRODUCTION AND SUMMARY OF ARGU-

a ET re 2

A. Resource Recovery Is A Critical Aspect Of MSW

alia iaierertreeeriepeernmmeemees 2

B. Requiring MSW Ash To Be Managed As A

Subtitle C Waste Substantially Raises The Cost

Of MSW Disposal And Renders Resource Re-

covery Facilities Economically Unviable ........... 6

C. Summary Of Argument ....................-........--------.--- 9

ARGUMENT 11

THE COURT OF APPEALS’ INTERPRETA-

TION OF SECTION 3001(i) CONTRAVENES

THE PLAIN LANGUAGE OF THE STATUTE

AND CONGRESS’S PURPOSE IN ENACTING

IT 11

A. MSW Ash Is A Treatment Residue That Is

Excluded From Subtitle C Regulation Under

The Express Terms Of Section 3001 (i) .—..... 12

B. The History Of § 3001(i) Demonstrates That

Congress Intended To Exempt The Entire

MSW Stream From Regulation Under Sub-

title C 17

C. The Court Of Appeals’ Interpretation Con-

travenes The Congressional Purpose Under-

lying Section 3001 (i) 20

(iii)

iv

TABLE OF CONTENTS—Continued

1. The Court of Appeals’ Decision Contra-

venes the Congressional Purpose of

Promoting the Development of Resource

Recovery Facilities

D. If The Language Of The Statute Is Ambigu-

ous And The Legislative History Inconclu-

sive, The Court Should Defer To EPA’s In-

III ccisesiivctetbeniiatinsastacieeminteennseemntecnithatimiten

GSS cnnncsnnmnenmamennsspeasmenemessensmeemnmeuees

Page

21

v

TABLE OF AUTHORITIES

CASES: Page

American Mining Congress v. Environmental Pro-

tection Agency, 824 F.2d 1177 (D.C. Cir. 1987). 13-14

Chemical Waste Management, Inc. v. Hunt, 112

Ss I Sa 8

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

Council, Inc., 467 U.S. 8837 (1984) —.0.00...... 11, 24, 25, 26

Crandon v. United States, 494 U.S. 152 (1990)... 11, 17,

20, 21

Edison Elec. Inst. v. Environmental Protection

Agency, Nos. 90-1320-1324 (D.C. Cir. Aug. 6,

ERR RE ECA a er keh Mle = Oe et 14

Environmental Defense Fund v. Environmental

Protection Agency, 852 F.2d 1316 (D.C. Cir.

1988), cert. denied, 109 S.Ct. 1120 (1989) 12

Environmental Defense Fund, Inc. v. Wheelabrator

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

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

8 F&F RE anes eee 20

K Mart Corp. v. Cartier, Inc., 486 U.S. 281

RR ERTIES TTS ASTS SEL a en BSR aN oa 11

Pennsylvania Public Welfare Dept. v. Davenport,

495 U.S. 552 (1990) ..................... saiaehibienseinidaeiamaases 11

Rust v. Sullivan, 111 8.Ct. 1759 (1991) ...24, 25, 26, 26-27

Securities Industry Ass’n v. Board of Governors,

a 11

Sullivan v. Everhart, 494 U.S. 83 (1990) .........0.... 24

United States v. Nordic Village, Inc., 112 S.Ct.

1011 (1992) ........ 17

vi

TABLE OF AUTHORITIES—Continued

Page

STATUTES:

Resource Conservation and Recovery Act, 42 U.S.C.

§§ 6901-6992k (1988)

a eesiiiamasines 21

EE eee mien 21

EE — 5 5

ERE ES ACESS ee 14

ls Oe ED cterecnctenotensssnscenstnnsenss nenuindan 12

42 U.S.C. § 6903(7) .......... saaeanteai ll aiaaaibedaieiaaiadh 16, 17

Ss IED cctttusetrinnnennitininemmmmeainenee 15

Bs TIED i ccadsicniictnsnnieeemeniannicasneiciiets 13

ene 12, 15,17

EE anne 21

IEE TET wsdrenessumninpennienneemeneniinel passim

a enigieiensieidiaidatie 6-7

I i ciimueaiin 6-7

42 U.S.C. § 6942(c) (10) _........... asadaenaasiabiaidtica 21

FO earls oneereee 22

I mies 21

Solid Waste Disposal Act Amendments of 1980,

Pub. L. No. 96-482, § 32, 1980 U.S.C.C.A.N.

0 a 22

Hazardous and Solid Waste Amendments of 1984,

Pub. L. No. 98-616, § 223, 1984 U.S.C.C.A.N.

On 19

REGULATIONS:

BOG. the FR. TD CBT) ccccecnccccccssssccesscusscensenssnsssscees 5, 11, 26

40 C.F.R. pt. 261 App. IT (1992) ...........................0..... 14

SG ie Be CUD ecereccccnenccsccsnceencncnsevessvenenscsees 14

SG le 6 RED CIID ccc ececccnennccnnecsnnseseensncesssnenenesnee 14

40 C.F.R. § 261.4(b) (1) (1992) -...................00-csseessene 18

vii

TABLE OF AUTHORITIES—Continued

Page

I 14

45 Fed. Reg. 38,064 (19680) ..................................... 10, 15, 18

45 Fed. Reg. 33,088-89 (1980) .....00000200 eee 18-19

45 Fed. Reg. 38,007 (1980) ...............ccccccccccececceeccececeeee 18

rs I ID eiseccccsccevcccesensessiccsecienesczesemn 15, 18

Fe I I ecccesccencnccnvstnsiccncnnenecinnenstintaass 10,18

Se ls i I CIID coc cccscsscsscccccinenscentisentisitieninsimanent 11, 25

ee I I ss siesiemibhiseoenpusiony 11, 25

tS EEE nen ae 3, 26

56 Fed. Reg. 50,992 (1991) 2.000000... ieieiatiaaidaeie 3

56 Fed. Reg. 51,000-15 (1991) ...000.00. eee eee 5

CI eicsccectcevccnctcctntenscsuntecsctoncseis 26

LEGISLATIVE HISTORY:

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

(1984), reprinted in 1984 U.S.C.C.A.N. 5576 _.... 19

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

reprinted in 1976 U.S.C.C.A.N. 6238 200000000000... 21, 22

S. Rep. No. 284, 98th Cong., Ist Sess. (1983) ...... 10, 19, 20

122 Cong. Rec. H11147 (Sept. 27, 1976) —................ 22

122 Cong. Rec. H11153 (Sept. 27, 1976) —... .W........ 22

Regulation of Municipal Solid Waste Incinerators:

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

Transportation and Hazardous Materials of the

House Comm. on Energy and Commerce, 101st

Cong., Ist Sess. (1989) ................. 8

MISCELLANEOUS:

B. Kent Burton & Jonathan V.L. Kiser, Energy

from Municipal Waste: Picking Up Where Re-

cycling Leaves Off, Waste Age, Nov. 1992 ........... 6

Richard W. Goodwin, Defending the Character of

Ash, Solid Waster & Power, Sept./Oct. 1992 _..... 5

William Gruber, TSD Summary 1993, EI Digest,

January 19938 ....... 8

viii

TABLE OF AUTHORITIES—Continued

Jonathan V.L. Kiser, Municipal Waste Combustion

in North America: 1992 Update, Waste Age,

ee a eee

Martin V. Melosi, Garbage in the Cities (1981) ......

National League of Cities, City Fiscal Conditions

ee OES OE

National Solid Waste Management Association,

Landfill Capacity in the Year 2000 (1989) ...........

Homer A. Neal & J.R. Schubel, Solid Waste Man-

agement and the Environment—The Mounting

Page

Garbage and Trash Crisis (1987) ..................... 3, 6, 9, 23

Walter R. Niessen, Municipal Waste Combustors:

Environmentally Sound Power Plants, Solid

Waste & Power, Jan./Feb. 1993 0000000000.

Jeffrey D. Smith, Hazardous Waste Landfill Facil-

ity Information, EI Digest, March 1992 ...........

The 1992 Municipal Waste Combustion Guide,

ee een

U.S. Department of Commerce, City Government

gg FEES EE ren oreees errne TDN enn

U.S. Department of Energy, National Energy

Strategy (1st ed. 1991/1992) ~...........0000000..

U.S. Environmental Protection Agency, Character-

ization of Municipal Solid Waste in the United

States: 1990 Update, EPA/50-SW-042 (June

eee ee ee ee

U.S. Environmental Protection Agency, Character-

ization of Municipal Solid Waste in the United

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

STITT a caarttesaneermeerenrennasiasesiiatinieniaiaeniesiataah itananiadul casemate diameenss

U.S. Environmental Protection Agency, Environ-

mental Fact Sheet, EPA/50-W-0-29C (April

SE cen ee. OTe Oe ne re a oe

U.S. Environmental Protection Agency, Solid Waste

Disposal in the United States, Executive Sum-

mary, EPA/530-SW-88-011A (Oct. 1988) ........

2,4

ix

TABLE OF AUTHORITIES—Continued

U.S. Environmental Protection Agency, Memoran-

dum from the Administrator to Regional Ad-

ministrators Regarding Exemption for Munici-

pal Waste Combustion Ash from Hazardous

Waste Regulation (Sept. 18, 1992) .....................

Page

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

No. 92-1639

CITY OF CHICAGO, et al.,

» Petitioners,

ENVIRONMENTAL DEFENSE FUND, INC., ef al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF OF THE NATIONAL LEAGUE OF CITIES,

U.S. CONFERENCE OF MAYORS, NATIONAL

GOVERNORS’ ASSOCIATION, INTERNATIONAL

CITY/COUNTY MANAGEMENT ASSOCIATION,

NATIONAL ASSOCIATION OF COUNTIES, COUNCIL

OF STATE GOVERNMENTS, AND NATIONAL

INSTITUTE OF MUNICIPAL LAW OFFICERS

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICI CURIAE

Amici, organizations whose members include municipal,

county, and state governments and officials throughout

the United States, have a compelling interest in legal

issues that affect local and state governments. Amici have

a manifest interest in the legal issues pertaining to the

responsible and efficient disposal of municipal solid waste

(“MSW”) since waste disposal is typical of the services

a

performed by state and local governments in discharging

their functions of administering the public law and fur-

nishing public services.

Jurisdictions around the country, faced with the pros-

pect of diminishing MSW landfill. capacity, increasing

landfill tipping fees, greater difficulties in siting new land-

fills, and increased energy demand, have invested heavily

in resource recovery and combustion systems to manage

MSW and serve energy needs. In addition to their fiscal

interest in the issue presented, amici also have an inter-

est in preserving the ability of municipalities to address

local environmental issues. Because of the importance of

the question presented to amici and their members, amici

submit this brief to assist the Court in its resolution of

the case.”

INTRODUCTION AND SUMMARY OF ARGUMENT

A. Resource Recovery Is A Critical Aspect Of MSW

Management

This country faces a severe_problem in managing its

municipal garbage, principally attributable to two factors.

First, the amount of MSW generated in the U.S. is in-

creasing. Between 1988 and 1990, MSW generated in

the U.S. increased by 8%, from 180 million tons per

year to 195.7 million tons per year.” The EPA has re-

cently estimated an increase of 13% in MSW generation

by the year 2000, to a total of 222 million tons per year.*

1 The parties have consented to the filing of this brief amicus

curiae. Letters indicating their consent have been filed with the

Clerk of the Court.

2 See U.S. Environmental Protection Agency, Characterization of

Municipal Solid Waste in the United States: 1992 Update, EPA/

530-R-92-019, ES-3 (July 1992) (hereinafter EPA 1992 Update) ;

U.S. Environmental Protection Agency, Characterization of Munici-

pal Solid Waste in the United States: 1990 Update, EPA/50-SW-

042, ES-3 (June 1990) (hereinafter EPA 1990 Update).

3 See EPA 1992 Update at ES-3.

3

Second, MSW landfill space, a finite resource, is becom-

ing scarcer. While there were approximately 10,000

operating MSW landfills in 1970, only approximately

6,500 remained in operation by 1988. Moreover, many

of these landfills will be forced to close as a consequence

of regulations promulgated by the EPA in 1991.° The

combination of these two factors has led to an emerging

national MSW landfill capacity shortage.”

Incineration plays a significant role in MSW manage-

ment. In 1938, approximately 600 to 700 cities and

towns burned their garbage and rubbish. However, use

of incineration waned as landfilling became more eco-

nomical, and by 1970 only 160 incinerators and resource

recovery facilities were in operation.* Today, resource

recovery facilities and incinerators have again become a

vital part of the MSW management system and are

increasingly important due to the shortage of landfill

space. Incineration reduces pressure on landfill capacity

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

mass by approximately 75%.° Incineration burns away

4 Solid Waste Disposal Facility Criteria (Final Rule) 56 Fed.

Reg. 50,978, 50,988 (1991) ; U.S. Environmental Protection Agency,

Report to Congress, Solid Waste Disposal in the United States,

EPA/530-SW-88-011A, Executive Summary at 1 (October 1988).

5 See 56 Fed. Reg. 50,992 (1991).

6 National Solid Waste Management Association, Landfill Ca-

pacity in the Year 2000, at 4 (1989) (“[D]isposal requirements

will exceed existing capacity by around 1998.”). Although recently,

due to the economic recession and greater efforts at recycling, the

rate at which landfill space is diminishing has decreased, long-term

projections of landfill scarcity are well-founded.

7 Martin V. Melosi, Garbage in the Cities 217 (1981).

8 Jd.

® Homer A. Neal & J.R. Schubel, Solid Waste Management and

the Environment—The Mounting Garbage and Trash Crisis 117

(1987).

4

the organic (carbon based) compounds in the MSW,

leaving the non-burnable metal components of the orig-

inal MSW concentrated in the reduced volume of ash

which is the treatment residue.” Jurisdictions which

burn portions of the MSW stream and then landfill the

ash residue reduce their landfill tipping fees and transpor-

tation costs significantly. As of November 1992, 176

resource recovery facilities and incinerators burned nearly

34 million tons of MSW annually, or 17% of the nation’s

total MSW stream." If the 49 projects that are currently

inactive or in the planning and construction stages are

completed and become operational, capacity will increase

to approximately 47 million tons per year, or 21% of

the estimated total volume of MSW that will be gener-

ated in the year 2000.”

In addition to reducing use of landfill space, resource

recovery facilities provide other substantial environmenial

and economic benefits. The EPA has concluded that the

resource recovery process is environmentally safer and,

therefore, preferable to the landfilling of MSW.” Resource

recovery facilities and incinerators must comply with

strict emissions requirements promulgated pursuant to

the Clean Air Act.** Moreover, EPA’s recent promulga-

10 The only potentially environmentally threatening components in

the MSW ash—unburnable metals such as lead and cadmium—are

not created by the incineration, but exist in the untreated MSW,

which can be lawfully disposed of in a Subtitle D landfill.

11 Jonathan V.L. Kiser, Municipal Waste Combustion in North

America: 1992 Update, Waste Age, Nov. 1992, at 28.

12 Jd. at 30.

13 See EPA 1992 Update at 1-4; EPA 1990 Update at 4.

14 See Walter R. Niessen, Municipal Waste Combustors: En-

vironmentally Sound Power Plants, Solid Waste & Power, Jan./

Feb. 1993, at 12 (“Municipal waste combustors are required to

meet some of the toughest environmental air emission standards

in the country. Complying with these standards makes modern

waste combustors among the cleanest producers of electricity.”).

-

tion of more stringent requirements to govern Subtitle D

non-hazardous waste landfills receiving MSW ash has con-

tributed to the increased safety of MSW ash disposal.”

Recent field studies of ash and leachates from ash monofills

show that lead and cadmium in MSW ash do not pose a

significant threat to the environment or to public health

and safety."* These studies indicate that with appropri-

ate management, MSW ash is safe for re-use in appli-

cations such as substitute material in cement, in road

15 See 40 C.F.R. pt. 258 (1992); 56 Fed. Reg. 51,000-15 (1991).

These more stringent requirements include: location restrictions;

stricter operating requirements such as covering disposals; record-

keeping and controlling run-off; better design criteria that include

denser liners and leachate collection systems: groundwater monitor-

ing: and closure and post-closure care. Given the stricter standards

for ash monofills, EPA has determined that MSW ash can be regu-

lated under Subtitle D in a manner that “protects both the environ-

ment and public safety.” See Memorandum from William K.

Reilly, Administrator, U.S. EPA, to All Regional Administrators,

Subject: Exemption for Municipal Waste Combustion Ash From

Hazardous Waste Regulation Under RCRA Section 3001(i), at 4

(September 18, 1992) (hereinafter MWC Ash Memorandum) (re-

printed as Appendix to Brief for the United States as Amicus

Curiae, No. 91-1328). See also U.S. Environmental Protection

Agency, Environmental Fact Sheet, EPA/'50-W-0-29C (April 1990)

(hereinafter Fact Sheet) (“The disposal of ash in a well-designed

monofill greatly reduces the leachability of constituents of concern

such as lead and cadmium.”).

16 Prior studies of MSW ash were based on laboratory testing.

However, ash taken directly to a laboratory for analysis does not

behave in the same way as ash disposed of in monofills or ash

prepared for re-use. See Richard W. Goodwin, Defending the

Character of Ash, Solid Waste & Power, Sept./Oct. 1992, at 18.

Field tests show that MSW ash exhibits an encapsulating quality

such that potentially harmful constituents like cadmium and lead

bind up in the ash and are not released into the environment. Id.

at 20. Moreover, heavy metal concentrations in ash diminish over

time and recent studies show that leachate values from ash mono-

fills approximate EPA’s Primary Drinking Water Standards. Id.

6

construction, as daily cover for MSW landfills, or as a

monofill liner."

Another benefit of resource recovery facilities is the

significant economic advantage they provide in the energy

field. One ton of MSW burned in a resource recovery

plant provides enough energy to light one thousand 100-

watt light bulbs for one hour, power 500 hair dryers for

one hour, or furnish electricity to an average apartment

for one month.’* Over 31 million tons of MSW are

burned annually, producing enough energy to power the

equivalent of 1.3 million homes, an increase of approxi-

mately 18% since 1990." The EPA forecasts that between

1991 and 2010, the generation of electricity from MSW

combustion will increase seven-fold.” Moreover, a portion

of the energy generated by resource recovery facilities is

used to operate the plants themselves, making the facilities

self-sufficient. The remainder is sold and the proceeds

applied to the facilities’ operating expenses, further reduc-

ing the cost of MSW disposal to local governments.

B. Requiring MSW Ash To Be Managed As A Subtitle C

Waste Substantially Raises The Cost Of MSW Dis-

posal And Renders Resource Recovery Facilities Eco-

nomically Unviable

The decision below requires that resource recovery

facility operators dispose of MSW ash only at landfills

which have obtained applicable state or federal hazardous

waste treatment, storage and disposal permits under the

strict requirements of Subtitle C of RCRA, 42 U.S.C.

17 Id. at 24.

18 Neal & Schubel, supra note 9, at 108.

19 B. Kent Burton & Jonathan V.L. Kiser, Energy from Munici-

pal Waste: Picking Up Where Recycling Leaves Off, Waste Age,

Nov. 1992, at 38.

20U.S. Department of Energy, National Energy Strategy 126

(1st ed. 1991/1992).

7

§§ 6924, 6925. At a time when many of the nation’s

cities are in the midst of serious fiscal crises, the court

of appeals’ decision exacerbates this situation by substan-

tially raising the costs of MSW disposal.** As a conse-

quence of the stricter requirements imposed by Subtitle

C, the cost of disposing of MSW ash in a hazardous waste

landfill is substantially greater than it is in either MSW

landfills or in ash monofills. According to the EPA, the

national average cost of disposing of MSW ash in a

Subtitle D landfill is $42 per ton, while the national

average cost of disposing of MSW ash in a Subtitle C

landfill is $453 per ton. MWC Ash Memorandum at 7.

Municipalities have chosen resource recovery as an

integral part of their waste management programs be-

cause of its long term economic and energy benefits, and

because it is environmentally safer than landfilling MSW.

But even with these benefits, municipalities will not be

able to absorb the dramatic increase in operating costs

that will result if MSW ash must be disposed of in Sub-

title C facilities. Furthermore, if all the MSW ash cur-

rently produced (some 8.5 million tons annually) is di-

verted to hazardous waste landfills, hazardous waste land-

fill charges are likely to increase significantly because of the

added demand for limited hazardous waste landfill ca-

21 A 1991 study by the National League of Cities documents the

financial plight of the cities. Almost 61% of the cities surveyed

reported that 1991 general fund expenditures were expected to ex-

ceed revenues; over 26% said that expenditures would exceed

revenues by more than 5%. National League of Cities, City Fiscal

Conditions in 1991, at iii (1991) (City Fiscal Conditions). In the

period 1988-1990, municipal solid waste management costs rose at

a rate 30% greater than city revenues. U.S. Dept. of Commerce,

City Government Finances 1989-1990, at 1. As a consequence,

66.2% of the cities responding to the NLC survey reported that

the cost of solid waste disposal was one factor beyond their control

contributing to fisca! difficulties. City Fiscal Conditions at 31. Over

10%. of cities reported that landfill, refuse, solid waste and recycl-

ing expenses comprise the single factor that most adversely affects

city expenditures. /d. at 7.

8

pacity.” Only one hazardous waste landfill has been sited

since 1987,* and there are only 20 hazardous waste land-

fills throughout the country.** See generally Chemical

Waste Management, Inc. v. Hunt, 112 S.Ct. 2009, 2011-

12 (1992).

The fiscal consequences of requiring MSW ash to be

disposed of in Subtitle C hazardous waste landfills are best

illustrated by representative examples from various com-

munities. Hennepin County, Minnesota has advised amici

that its estimated cost to dispose of MSW ash as a hazard-

ous waste is $150 to $200 per ton. This is three to four

times the $50 per ton which the county pays for ash dis-

posal in a MSW landfill or monofill. Moreover, the cost

is approximately six to seven times the national average

for tipping fees at MSW landfills, which is $26.56 per

ton.** New York City, which incinerates over one million

tons of MSW annually, estimates that its disposal cost per

ton would increase from approximately $100 to over $300

if MSW ash is designated as hazardous. This would in-

crease New York’s MSW disposal costs by over $200 mil-

lion per year. By way of comparison, its cost of diverting

the MSW waste stream directly to a MSW landfill with-

out any incineration is only $30 per ton.”

22 At the end of 1987 the United States had an estimated 34

million tons of hazardous waste landfill capacity. Regulation of

Municipal Solid Waste Incinerators: Hearings on H.R. 2162 Before

the Subcomm. on Energy and Commerce, 101st Cong., Ist Sess. 198

(1989).

23 Jeffrey D. Smith, Hazardous Waste Landfill Facility Informa-

tion, EI Digest, Mar. 1992, at 24.

** William Gruber, TSD Summary 1993, EI Digest, Jan. 1993,

at 14, 17.

25 Landfill Capacity in the Year 2000, supra note 6, at 4.

26 Akron, Ohio, estimates that the cost of landfilling one ton of

MSW is $50; the cost of incinerating one ton of MSW and land-

filling the ash in a MSW landfill is $57; and the cost of incinerating

one ton of MSW and disposing of the ash in a hazardous waste

landfill is $92. Thus, for Akron, it would cost almost twice as much

to burn a ton of MSW and take the residue to a hazardous waste

9

As these examples show, affirmance of the court of

appeals’ decision will substantially increase the costs of

MSW disposal. It will also create a great economic dis-

incentive to the development of new resource recovery

facilities. The 40 plants currently in the planning or con-

struction stages involve enormous development costs;

as one authority has noted, in 1985 the cost of building a

resource recovery facility capable of processing 1000 tons

of MSW per day was $80 million.” Solid Waste Manage-

ment and the Environment, supra at 117. The surcharge

imposed by requiring MSW to be disposed of under Sub-

title C can only lead to the cancellation of those facilities

not yet completed and jeopardize the economic viability

of existing facilities.

C. Summary Of Argument

1. The plain language of § 3001(i) manifests Con-

gress’s intent to exclude the entire MSW stream from

regulation as a hazardous waste under RCRA’s Subtitle ioe

The court of appeals’ construction misapprehends the im-

port of the inclusion by Congress in § 3001(i) of the

terms “treating,” “disposing of,” and “managing.” Not

only does § 3001(i)’s use of these terms demonstrate that

Congress intended to exempt the MSW waste stream from

landfill than to simply dispose of the untreated MSW in a sanitary

landfill. For Marion County, Oregon, landfilling MSW ash as a

hazardous waste would almost double the cost of MSW disposal, rais-

ing it from the current cost of $46.95 per ton to $80.10 per ton.

This can be compared with its cost of $36 per ton to send MSW

directly to a landfill.

27 The jurisdictions with publicly owned resource recovery fa-

cilities in the advanced planning or construction stages include:

Lisbon, Connecticut; Lee County, Florida; Montgomery County,

Maryland; Oakland County, Michigan; Dakota County, Minnesota ;

St. Louis, Missouri; Mercer County, New Jersey; Monmouth County,

New Jersey; Morris County, New Jersey; Union County, New

Jersey; Mecklenburg County, North Carolina; Montgomery County,

Pennsylvania; Kingston, Rhode Island; Johnston, Rhode Island;

Nashville, Tennessee; and Brazoria County, Texas. The 1992 Mu-

nicipal Waste Combustion Guide, Waste Age, Nov. 1992, at 56.

10

Subtitle C regulation, the very process of incineration falls

within the statutory definition of “treating,” which is

specifically exempted from regulation under Subtitle C.

Moreover, a resource recovery facility’s subsequent dis-

posal of MSW ash residue is also exempt from regulation

under Subtitle C because it involves the statutorily exempt

activity of “disposing of” residue.

2. The history of § 3001(i) supports this conclusion.

In 1980, EPA, while recognizing that MSW might con-

tain a small amount of hazardous waste, promulgated the

Household Waste Exclusion Rule which excluded the en-

tire MSW waste stream from regulation under Subtitle

C. See 45 Fed. Reg. 33.084, 33,120 (1980). Congress’s

subsequent enactment of § 3001(i) expressly ratified the

Household Waste Exclusion Rule and its exemption of

the entire MSW stream from regulation under Subtitle

C. As the Senate Report stated, “[a]ll waste management

activities of . . . [a resource recovery] facility, including

the generation, transportation, treatment, storage and dis-

posal of waste shall be covered by the exclusion... .”

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

3. Congress’s purpose in exempting “resource re-

covery facilitlies] recovering energy” in § 3000(i) was

to promote the development of such facilities. The deci-

sion below undermines this purpose by substantially rais-

ing the cost of disposal of ash residue. As the EPA has

noted, the national average cost for disposal of ash in a

Subtitle D (non-hazardous waste) landfill is $42 per ton;

the national average cost for disposal of ash in a Subtitle

C (hazardous waste) landfill is $453 per ton. MWC Ash

Memorandum at 7. The Seventh Circuit’s rule places a

crippling surcharge on the cost structure of resource re-

covery facilities which is likely to render many facilities

economically unviable, thereby contravening the congres-

sional purpose.

4. Finally, if the Court concludes that Section 3001 (i)

is ambiguous, the Court should nonetheless defer to the

11

EPA’s reasonable interpretation of the statute as set forth

in the 1992 MWC Ash Memorandum. Chevron U.S.A.,

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

837 (1984). The court of appeals’ refusal to accord

deference—assertedly because of EPA’s “waffling,” Pet.

App. at 16—mischaracterizes the EPA’s position, which

has consistently been that MSW Ash is not subject to

regulation under Subtitle C. See 50 Fed. Reg. 28,702,

28,726 (1985). It also ignores the teaching of this Court

that an “agency, to engage in informed rulemaking, must

consider varying interpretations and the wisdom of its

policy on a continuing basis.” Chevron, 467 U.S. at

863-64. Here, to the extent EPA has changed its position

at all, it has done so in response to new scientific and

administrative developments. See 40 C.F.R. pt. 258

(1992); MWC Ash Memorandum at 5 & n.5.

ARGUMENT

THE COURT OF APPEALS’ INTERPRETATION OF

SECTION 3001(i) CONTRAVENES THE PLAIN

LANGUAGE OF THE STATUTE AND CONGRESS’S

PURPOSE IN ENACTING IT

As in any case of statutory construction, interpretation of

$ 3001(i) “begins with the language of the statute itself.”

Pennsylvania Public Welfare Dept. v. Davenport, 495 U.S.

552, 558 (1990). The usual “assumption [is] that the

legislative purpose is expressed by the ordinary meaning

of the words used.” Securities Industry Ass’n v. Board of

Governors, 468 U.S. 137, 149 (1984). However, “[iJn

determining the meaning of [a] statute, [the court must]

look not only to the particular statutory language, but

[also] to the design of the statute as a whole and to its

object and policy.” Crandon v. United States, 494 U.S.

152, 158 (1990); see also K Mart Corp. v. Cartier, Inc.,

486 U.S. 281, 291 (1988).

The court of appeals held that § 3000(i) does not

exempt MSW ash “generated” during management of the

12

waste stream from Subtitle C regulation. The court of

appeals’ construction is erroneous, however, rey

ignores the import of the inclusion by Congress in §

(i) of the express statutory terms “treating, disposing

of” and “managing.” The court of appeals’ construction

contravenes not only the plain language of the statute but

also Congress’s object and policy in enacting RCRA: that

the entire MSW waste stream be excluded from regulation

under Subtitle C in order to encourage the development

and use of resource recovery facilities.

A. MSW Ash Is A Treatment Residue That Is Excluded

From Subtitle C Regulation Under The Express

Terms Of Section 3001(i)

In 1976 Congress enacted RCRA,” thereby overhaul-

ing the management of wastes in the United States. See

42 U.S.C. $$ 6901 ef seq. Subtitle C of RCRA estab-

lishes a scheme for regulating hazardous wastes from

“cradle to grave.” Environmental Defense Fund v. En-

vironmental Protection Agency, 852 F.2d 1316, 1318

(D.C. Cir. 1988), cert. denied, 109 S.Ct. 1120 (1989).

This scheme involves regulation of hazardous wastes along

a continuum, or “waste stream,” composed of the genera-

tion,” transportation, treatment,” storage, and disposal

of the hazardous waste.”

Congress, however, recognized that even the hazardous

wastes contained in MSW could be treated in an envi-

28 Pub. L. No. 94-580, 1976 U.S.C.C.A.N. (90 Stat.) 2795 (1976)

(codified as amended at 42 U.S.C. §§ 6901-6992 (k) ).

29 In the context of hazardous waste, “generation” is defined as

“ftihe act or process of producing hazardous waste. See RCRA

§ 1004 (34), 42 U.S.C. § 6903 (6).

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

31 RCRA § 1004(3), 42 U.S.C. § 6903(3).

; — =

82 Subtitle D of RCRA provides a similar cradle to grave regu

tory framework for non-hazardous wastes. See 42 U.S.C. §§ 6941-

49.

13

ronmentally sound and financially less burdensome man-

ner than is required by Subtitle C. Accordingly, Congress

enacted Section 3001(i), which establishes an exclusion

from Subtitle C regulation for resource recovery facilities

that burn MSW in order to recover energy, as long as

certain requirements are met. Section 3001(i) provides in

relevant part:

[A] resource recovery facility recovering energy from

the mass burning of municipal solid waste shall not

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

otherwise managing hazardous waste material for the

purpose of regulation under this chapter.

42 U.S.C. § 6921(i) (emphasis added). Congress thus

exempted the operation of resource recovery facilities

burning MSW to recover energy from RCRA’s Subtitle

C regime regulating the management of hazardous wastes,

regardless of the characteristics of the waste being burned.

Respondents contend, see Op. Cert. 13-16, and the

court of appeals held, see Pet. A. 18-20, that notwith-

standing the express language of § 3001(i), petitioners

must dispose of ash generated during the incineration of

MSW as a hazardous waste under RCRA’s Subtitle C.

According to respondents and the court below, where the

incineration of MSW “generates” a new hazardous waste,

§ 3001(i) requires incinerator ash to be managed as a

hazardous waste under RCRA Subtitle C. This reading

of § 3001(i), however, is contradicted by the statute’s

express use of language—‘treating, storing, disposing of,

or otherwise managing,” 42 U.S.C. § 6921(i)—which

manifests Congress’s intent to exempt from regulation as

a hazardous waste the entire MSW waste stream from

generation by households through the post-incineration

disposal of the ash residue.

Under RCRA, a material becomes a “solid waste” at

the time it is first discarded. See 42 U.S.C. § 6903(27)

(defining “solid waste” as “any garbage, refuse, . . . and

other discarded material”); cf. American Mining Congress

14

v. Environmental Protection Agency, 824 F.2d 1177,

1193-94 (D.C. Cir. 1987). MSW, including any haz-

ardous waste component contained therein, is thus gen-

erated as a “solid waste” at the moment a person OF

business puts garbage out for pickup by a waste hauler

for transport to a resource recovery facility.

Likewise. the next step in the process of managing the

waste stream—the incineration or thermal treatment of

MSW at the resource recovery facility—does not result

in the “generation” of a new hazardous waste subject to

regulation under RCRA’s Subtitle C. To be sure, at this

stage in the MSW stream, the most significant changes

occur in the physical and chemical composition of MSW.”

To the extent that incineration “generates” a new haz-

33 RCRA § 1004(5), 42 U.S.C. § 6903(5), defines hazardous waste

as a subset of solid waste. 40 C.F.R. §§ 261.2 and 261.3 (1992) set

forth, respectively, the regulatory definitions of solid and hazard-

out waste.

34 In this process, organic, carbon-based, compounds are decom-

posed, leaving an ash containing a non-burnable metallic residue.

This ash is not a newly “generated” waste, but the residue of a

process which changed the physical and chemical composition and

character of the MSW. The metallic constituents of the ash are the

same as the metallic constituents of the MSW received by the

facility; they are simply concentrated into a volume approximately

one-tenth as large because the organic compounds have been burned

away. Because of the concentration of metals in the ash, the ash

may sometimes demonstrate “toxicity,” a characteristic of hazard-

ous waste, when tested using EPA’s Toxic Characteristics Leaching

Procedure (“TCLP”). See 40 C.F.R. § 261.24 and pt. 261 App. Il

(1992). TCLP is a test of the concentration at which metals such

as lead and cadmium will leach from a material. See Edison Elec.

Inst. v. Environmental Protection Agency, Nos. 90-1320-1324, slip

op. at 6-8 (D.C. Cir. Aug. 6, 1993) (describing TCLP). Because

the concentration at which metals leach from a material is likely

to be greater the higher the concentration of metals in a material,

burning away the organic compounds in MSW increases the like-

lihood that the concentration of leachate in the ash residue will

exceed the TCLP test. As explained supra at p. 5 n.16, however,

recent field studies indicate that the lead and cadmium concentrated

in MSW ash do not pose a significant leachate problem.

15

ardous waste, however, Congress has expressly exempted

this process from regulation under Subchapter C. See 42

U.S.C. § 6921(i). Having defined “treatment” as “any

method, technique or process . . . designed to change the

physical, chemical or biological character or composition

of any hazardous waste so as to neutralize such waste or

sO as to render such waste nonhazardous, safer for trans-

port, amenable for recovery, amenable for storage, or

reduced in volume,” 42 U.S.C. § 6903(34) (emphasis

added )—language which plainly encompasses the process

of incineration—Congress has clearly expressed its intent

to exclude ash residue from regulation as a hazardous

waste under Subtitle C, regardless of its characteristics.

As the plain language of § 6903(24) demonstrates, the

treatment” of hazardous waste does not include only

those processes which render the waste ‘“‘nonhazardous.”

Rather, it also encompasses those processes which do not

render the waste “nonhazardous” so long as they “change

the physical, chemical, or biological character or compo-

sition . . . so as to render such waste . . . safer for trans-

port, amenable for recovery, amenable for storage, or re-

duced in volume.” 42 U.S.C. § 6903(24). Congress was

thus clearly aware that not all processes used to treat

hazardous waste render that waste “nonhazardous.”’ None-

theless, in enacting § 3001(i), it chose to exempt the

“treatment” of MSW from Subtitle C.

Accordingly, for purposes of RCRA, in incinerating

MSW and producing ash a resource recovery facility is

treating pre-existing municipal solid waste that has already

been generated, not creating a new hazardous waste. And

foreshadowing Congress’s intent in enacting § 3001(i)

EPA properly described MSW ash as a “treatment resi-

due.” See 45 Fed. Reg. 33,084, 33,099 (1980) (“[Resi-

dues] remaining after treatment (e.g., incineration, ther-

mal treatment) are not subject to regulation as hazard-

ous waste.” ).

The resource recovery facility’s disposal of MSW ash

in a landfill after mass burning is likewise within the scope

16

of the § 3001(i) exemption. In the ordinary course of the

‘mass burning” of MSW, a resource recovery facility does

not engage in 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). Rather, it is only after the facility completes

incineration that it engages in the “deposit,” “dumping,”

“or placing of any solid waste or hazardous waste into or

on any land”. id., by “disposing of” the ash residue. 42

U.S.C. § 6921(i). Such disposal, however, is plainly en-

compassed within § 3001(i)’s exemption. Simply stated,

this is because if Congress’s use of the language—“a re-

source recovery facility recovering energy from the mass

burning of municipal solid waste shall not be deemed to

be . . . disposing of . . . hazardous waste”—is to have

any meaning, it must refer to the facility’s subsequent

“dispos[al] of” MSW ash. As EPA recently noted in its

September 1992 MWC Ash Memorandum, “the burning

of such waste generally is regarded as a type of treat-

ment under RCRA. . . . MWC ash ordinarily is the only

waste “disposed of” by such a facility.” MWC Ash Mem-

orandum at 3 (internal ciations omitted).

As the foregoing demonstrates, the entire process is

one of managing the MSW stream, in other words,

“(t]he systematic control of the collection, source separa-

tion . . . transportation . . . treatment, recovery, and

disposal” of the waste. 42 U.S.C. § 6903(7) (emphasis

added). By expressly including in § 3001(i) the terms

“treating,” “disposing of” and “managing,” Congress

manifested its intent to exempt the entire continuum of

MSW management from regulation under RCRA’s Sub-

title C hazardous waste regime.

In reaching its conclusion that MSW ash does not fall

within the scope of the exclusion, the court of appeals

reasoned that the terms used in § 3001( i). ie., “other-

wise managing.” “treating.” and “disposing of,” are not

“coextensive” with the term “generating” and that their

“definitions exclude ‘generation.’” Pet. App. 18-19.

17

In doing so, however, the court of appeals effectively

read the former terms out of the statute. Contrary

to the reasoning of the court of appeals, the term “treat-

ment” expressly encompasses the changes in physical and

chemical composition and character which occur during

the creation of ash residue by incineration. See 42 U.S.C.

§ 6903(34). And RCRA’s definition of “treatment” in-

cludes processes which do not render waste “nonhazard-

ous” so long as they “render such waste . . . safer for

transport, amenable for recovery, amenable for storage,

or reduced in volume.” /d.

Likewise, the term “management” embraces such ac-

tivities as the “processing, treatment, and disposal” of

wastes, see 42 U.S.C. § 6903(7) (defining “hazardous

waste management”) which, too, embraces the incinera-

tion of MSW and subsequent disposal of ash residue. See

also 42 U.S.C. § 6903(3) (defining “disposal” as the

deposit . . . dumping .. . or placing of any solid waste

or hazardous waste into or on any land... ”).

As the foregoing demonstrates, the statutory definitions

of the terms Congress employed in enacting § 3001(i)’s

exemption clearly embrace the entire MSW stream from

its generation by households through the post-incineration

disposal of ash residue. The court of appeals’ failure to

give operative effect to the very language which Congress

employed in § 3001(i) and RCRA’s statutory definitions

thus violates the fundamental canon of statutory con-

struction that each word in a statute be given effect. See,

e.g., United States v. Nordic Village, Inc., 112 S.Ct. 1011,

1015 (1992): Crandon, 494 U.S. at 171. This, by itself,

is reason to reverse the judgment of the court below.

B. The History Of § 3001(i) Demonstrates That Con-

gress Intended To Exempt The Entire MSW

Stream From Regulation Under Subtitle C

The history of § 3001(i) supports our reading of the

plain language. Consistent with congressional resource

recovery policies and the MSW regulatory scheme em-

18

bodied in RCRA, in 1980 EPA promulgated the House-

hold Waste Exclusion Rule which provided the basis for

the statute which Congress adopted four years later as

Section 3001(i). See 45 Fed. Reg. 33,084, 33,120

(1980) (codified at 40 C.F.R. § 261.4(b) (1) (1992) as

amended). EPA’s rule excluded the entire household

waste stream from Subtitle C regulation. Although

EPA knew when it promulgated the regulation that a

small amount of hazardous waste would be included in

the MSW waste stream, the agency nonetheless concluded

that Congress’s intent was best served by excluding the

entire waste stream from Subtitle C 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

remaining after treatment (é.g., incineration, thermal

treatment) are not subject to regulation as hazardous

waste.

45 Fed. Reg. 33,099 (1990) (emphasis added ). Hence,

as a category of waste, household waste, including ash

residue remaining after treatment, was explicitly excluded

from regulation as a hazardous waste. The rationale for

this exclusion was not based on the content of the MSW

waste stream, but rather on the express congressional

policy of excluding the entire waste stream—“in all

phases of its management”—from the hazardous waste

regulations regardless of whether it could be classified as

hazardous waste on account of the characteristics of its

constituents. See id. at 33,097.”

35 Discussing the hazardous waste regulatory scheme in the

preamble to the regulation, EPA acknowledged that the system

was imperfect:

This system may not work perfectly for every waste however.

Jt may overregulate in some instances and underregulate im

others. This is an unavoidable consequence of attempting to

19

When Congress enacted the Hazardous and Solid Waste

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

U.S.C.C.A.N. (98 Stat.) 3221 (codified at various parts

of RCRA) (hereinafter “1984 RCRA Amendments”),

it expressly ratified EPA’s interpretation of legislative in-

tent with respect to MSW by enacting the “Clarification

of Household Waste Exclusion” as Section 3001(i).*

Section 3001(i) thus codified the household waste exclu-

sion rule promulgated by EPA. Congress also clarified

that the exclusion removed the entire household waste

stream from the Subtitle C hazardous waste regime and

that it applied to resource recovery facilities which burned

and derived energy from MSW.

The intent behind the clarification is stated in S. Rep.

No. 284, 98th Cong., Ist Sess. (1983), the Senate report

accompanying the Senate amendments to the original

House bill, and agreed to by the Conference Committee.’

Recognizing that it was important to encourage commer-

cially viable resource recovery facilities and to remove

impediments that may hinder their development and

operation, Senate Report 284 indicated that new Section

3001(i) clarified Congress’ original purpose to include

within the household waste exclusion al] the waste man-

agement activities of a resource recovery facility which

recovered energy from the mass burning of household

develop a national hazardous waste management program which

has to regulate thousands of wastes.

Id. at 33,088-89 (emphasis added). Despite this imperfection,

EPA, in accordance with the policy choice made by Congress,

struck the balance in favor of underregulation in order to promote

the important public policy of providing local governments with

flexibility in handling their MSW and encouraging resource re-

covery.

36 See 1984 RCRA Amendments § 223, 1984 U.S.C.C.A.N. (98

Stat.) 3252 (codified as amended at 42 U.S.C. § 6921(i)).

87 See H.R. Conf. Rep. No. 1133, 98th Cong., 2d Sess. 106 (1984),

reprinted in 1984 U.S.C.C.A.N. 5576, 5677.

20

waste and nonhazardous waste from other commercial

sources, as long as the facility took precautions against

accepting hazardous waste from commercial sources.

All waste management activities of such a facility,

including the generation, transportation, treatment,

storage and disposal of waste shall be covered by the

exclusion, if the limitations in paragraphs (1) and

(2) are met.

S. Rep. No. 284 at 61 (emphasis added). Significantly,

the Senate Report included “generation” in its explana-

tion of the provision proposed as Section 3001 (1), even

though the language of that provision did not include

the term. The Conference Committee adopted, without

change, the Senate version of Section 3001(i).

The unambiguous statement by the Senate that all

MSW waste management activities by a resource recovery

facility are covered by the Section 3001 (i) exemption

confirms that “Congress clearly knew of the EPA s inter-

pretation of the 1980 regulation” and agreed with it.

Environmental Defense Fund, Inc. v. W heelabrator Tech-

nologies, Inc., 725 F. Supp. 758, 765-66 (S.D.N.Y.

1989), aff'd, 931 F.2d 211 (2d Cir.), cert. denied, 112

S. Ct. 453 (1991). Moreover, the statement confirms

that Congress expressly intended MSW ash—the treat-

ment residue—to be within the scope of Section 3001 (1)’s

exemption.

C. The Court Of Appeals’ Interpretation Contravenes

The Congressional Purpose Underlying Section

3001 (i)

Even if the Court deems it necessary to look beyond

the plain language and _ history of Section 3001 (i), it

must still reject the court of appeals’ construction because

it is demonstrably at odds with the object and policy of

the statute. Crandon, 494 USS. at 158.

As described below, Congress, in enacting RCRA and

subsequent amendments thereafter, including § 3001(1),

21

has consistently sought to promote resource recovery as

an option for managing MSW in order to save scarce

landfill space and facilitate energy recovery. In promoting

this goal, Congress intended that the management of the

entire MSW waste stream—including the ash remaining

after incineration of MSW—be kept separate and apart

from RCRA’s hazardous waste management regime. The

court of appeals simply ignored Congress’ “object and

policy” in enacting the statute. Crandon, 494 USS. at

158. Its holding thus undermines the congressional pur-

pose in enacting RCRA and § 3001(i).

1. The Court of Appeals’ Decision Contravenes the

Congressional Purpose of Promoting the Devel-

opment of Resource Recovery Facilities

In enacting RCRA, one of Congress’ fundamental ob-

jectives was promoting resource recovery as an approach

to managing MSW. Congress recognized the increasing

scarcity of land available to metropolitan areas caused by

landfilling of MSW and concluded that resource recovery

facilities should be promoted both as an alternative to

landfilling and as an independent source of energy. H.R.

Rep. No. 1491, 94th Cong., 2d Sess. 3 (1976), reprinted

in 1976 US.C.C.A.N. 6238, 6240. See also RCRA

§$ 1002(b)(8) & (d), 42 U.S.C. § 6901(b)(8) & (d).*

Congress’s purpose of promoting the incineration of

MSW to produce energy as a primary means of resource

38 Demonstrative of its purpose of promoting the development

of MSW resource recovery, Congress authorized technical as well

as research and development aid to localities developing resource

recovery facilities under Subtitles B and D of RCRA. See RCRA

§§ 2003 & 4008, 42 U.S.C, §§ 6913, 6948. Congress also authorized

EPA to promulgate rules and guidelines to assist States in imple-

menting resource recovery plans and to specifically consider appro-

priate types of resource recovery facilities for a variety of state

and municipal situations. See RCRA § 4002(c)(10), 42 U.S.C.

§ 6942(c) (10).

22

recovery is amply reflected throughout the legislative his-

tory of RCRA. For example, the House Report ex-

plained that Section 4003 of RCRA, 42 U.S.C. § 6943,

allowed state and local governments the flexibility needed

to develop alternative disposal systems by “requir[ing]

that the discarded materials be utilized by a resource re-

covery facility for the recovery of energy . . . OF that such

discarded materials be disposed of . . . by [an] environ-

mentally sound method of disposal, including incineration

that does not conflict with the Clean Air Act.” H.R.

Rep. No. 1491, at 78-79 (emphasis added ).*

Four years after the passage of RCRA, Congress re-

affirmed its objective of promoting the development of

resource recovery facilities by enacting Section 32 of the

Solid Waste Disposal Act Amendments of 1980, Pub. L.

No. 96-482. 1980 U.S.C.C.A.N. (94 Stat.) 2334 (codi-

fied at various parts of Subtitle D of RCRA). Section 32

amended RCRA to improve and augment federal pro-

grams for energy and resource recovery assistance to

States and municipalities by authorizing the EPA to pro-

vide (1) grants to States and municipalities in order to

facilitate waste-to-energy feasibility and developmental

planning and, (2) technical assistance in order to remove

impediments to the development of energy recovery.

As RCRA and its 1980 amendments demonstrate, the

Congressional purpose underlying RCRA and § 3001(i)

was to promote the recovery of energy by excluding

from Subtitle C’s regulatory scheme the MSW waste

39 See also H.R. Rep. No. 1491, at 88-89, reprinted in 1976

U.S.C.C.A.N. 6324 (detailing the composition of the MSW stream,

and comparing the energy yields from incineration of MSW and

coal in terms of the British Thermal Unit value per pound each

contain, as well as their respective ash content equivalents); 122

Cong. Rec. H11147, H11153 (Sept. 27, 1976) (statement of Rep.

Myers) (RCRA represents a “major congressional commitment” to

recapture the discarded “millions of tons of paper, valuable metals,

glass, and other waste materials which could be reused or burned

for their energy value.”) (emphasis added).

23

stream in “all phases of its management,” including

treatment by incineration and disposal of the ash residue

resulting from such treatment. The court of appeals’ con-

struction of § 3001(i) undermines this purpose, effec-

tively rendering the statute a nullity by creating a great

economic disincentive to the development and continued

use of resource recovery facilities.

Even though incineration reduces the mass of MSW

by approximately seventy-five percent, see Solid Waste

Management at 117, the high cost of disposing of MSW

ash in Subtitle C landfills—estimated by EPA at an aver-

age of $453 per ton nationwide, MWC Ash Memorandum

at 7—more than offsets the benefit of incineration. In-

deed, the surcharge which the Seventh Circuit has im-

posed—more than $410 per ton if the national average

disposal costs for ash in Subtitle C ($453) and D ($42)

landfills is used—will simply render existing and proposed

facilities economically unviable. Even with the reduction

in the waste mass gained by incineration, landfilling un-

treated waste will be far cheaper than the cost of incin-

erating the waste and disposing of it in a Subtitle C land-

fill. See supra p. 8 & n.26. Faced with this surcharge

to the cost structure of resource recovery facilities, invest-

ments in such facilities will no longer be made. And the

economic costs imposed by the court of appeals’ holding

will result in municipalities abandoning their use of re-

source recovery facilities in favor of the least-cost alter-

native of landfilling untreated waste—thus undermining

Congress’s purpose of promoting the use of such facilities.

D.If The Language Of The Statute Is Ambiguous

And The Legislative History Inconclusive, The

Court Should Defer To EPA’s Interpretation

Finally, if the Court concludes that the language of

Section 3001(i) is ambiguous and the legislative history

is inconclusive, the Court should defer to the EPA’s rea-

sonable interpretation of the statute as set forth in the

24

1992 MWC Ash Memorandum. See Chevron U.S.A.,

Ine. v. Natural Resources Defense Council, Inc., 467

U.S. 837 (1984).

As this Court noted in Chevron, when a

court determines [that] Congress has not directly

addressed the precise question at issue, the court does

not simply impose its own construction on the statute

as would be necessary in the absence of an adminis-

trative interpretation. Rather, if the statute is silent

or ambiguous with respect to the specific issue, the

question for the court is whether the agency's answer

is based on a permissible construction of the statute.

467 US. at 843 (footnotes omitted); see also Rust v.

Sullivan, 111 S.Ct. 1759, 1767 (1991); Sullivan v. Ever-

hart, 494 U.S. 83, 89 (1990) (“agency’s interpretation

must be rational and consistent with the statute”). To

be a permissible construction, “[t]he court need not

conclude that the agency’s construction was the only one

it could permissibly have adopted . . . or even the reading

the court would have reached if the question initially had

arisen in a judicial proceeding.” Chevron, 467 U.S. at

843 n.11.

As Judge Ripple cogently explained in his dissent

below, EPA’s MWC Ash Memorandum was a responsible

attempt to resolve a major environmental policy question

in a situation where two courts of appeals had reached

diametrically opposed decisions on a question of statutory

interpretation. Pet. App. 3-4. EPA’s interpretation is

permissible as it is both rational and consistent with the

statute: EPA’s interpretation is based on giving operative

effect to all the terms of § 3001(a) and comports with

both Congress’s intent and its underlying policy of pro-

moting resource recovery.

In refusing to accord deference to the EPA’s Ash Memo-

randum, the court of appeals reasoned that the agency

had “waffifed]” in interpreting section 3001(i) and was

25

thus no longer entitled to deference. See Pet. App. at 16.

The court of appeals’ reasoning, however, is directly con-

trary to the teachings of this Court. As this Court noted

in Chevron, “({aJn agency interpretation is not instantly

carved in stone.” 467 U.S. at 863. Particularly when an

agency policy is predicated on certain scientific and tech-

nical judgments which may continue to evolve, “the

agency, to engage in informed rulemaking, must consider

varying interpretations and the wisdom of its policy on a

continuing basis.” Jd. at 863-64; see also Rust, 111 S.Ct.

at 1759 (An agency “must be given ample latitude to

‘adapt [its] rules and policies to the demands of changing

circumstances.’ ”) (citations omitted).

It is thus incorrect to portray the EPA as having

“waffled.” Granted, the preamble to EPA’s 1985 amend-

ment of the Household Waste Exclusion Rule displays the

EPA’s careful consideration of whether to regulate MSW

ash as a hazardous waste.*® Nonetheless, EPA continued

to view § 3001(i) as exempting MSW ash from regulation

as a hazardous waste under Subtitle C. See 50 Fed. Reg.

28,702, 28,726 (1985). And when, in 1992, EPA finally

undertook a detailed analysis of Section 3001(i), it de-

finitively resolved the issue by concluding that MSW

ash is excluded from hazardous waste regulation. Signifi-

cantly, EPA resolved the issue without departing from

the view it took in the 1980 promulgation of the House-

hold Waste Exclusion Rule and its other interim pro-

40 Notwithstanding this language, EPA continued to take the

position in its regulatory and enforcement actions that MSW ash

remained excluded from hazardous waste regulation under Section

3001(i). As EPA stated in the 1985 preamble:

EPA does not believe the HWSA imposes new regulatory

burdens on resource recovery facilities that burn household and

other non-hazardous waste, and the Agency has no plans to

impose additional responsibilities on these facilities.

50 Fed. Reg. 28,702, 28,726 (1985).

26

nouncements that MSW ash residue was exempt from reg-

ulation under Subtitle C."'

Moreover, even if EPA has changed its interpretation

of Section 3001(i), that does not compel the conclusion

that the agency’s most recent view is not to be afforded

deference. As Chevron instructs, an “agency, to engage

in informed rulemaking, must consider varying interpreta-

tions and the wisdom of its policy on a continuing basis.”

467 US. at 863-64: see also Rust, 111 S.Ct. at 1769.

Just as in Chevron, where the Court deferred to EPA

(recognizing that the agency had reconsidered its policy

in light of changing circumstances, see 467 US. at

857-58). in this case EPA has reconsidered the tech-

nical and policy issues posed by MSW ash in light of new

developments. Here, EPA’s conclusion that MSW ash

“can be regulated in a manner that will be protective of

human health and the environment under Subtitle D,”

MWC Ash Memorandum at 5-6, is based on the agency’s

assessment that the promulgation of stricter criteria for

MSW landfills receiving MSW ash will adequately safe-

guard the environment. See 40 C.F.R. pt. 258 (1992),

56 Fed. Reg. 50,978 (1991); MWC Ash Memorandum

at 5 & n.5." Thus, far from being instances of “waffling,”

EPA’s current and former pronouncements fall well

within the “ample latitude” given the agency to “adapt

its rules to the demands of changing circumstances,”

and to consider on a continuing basis “varying interpreta-

tions” of the statute and the “wisdom of its policy.” Rust,

41 In addition to EPA’ conclusion in the preamble to the 1985

amendment of the Household Waste Exclusion Rule, EPA also

concluded in 1991, when it adopted the more stringent solid waste

landfill criteria, that until Congress speaks to the issue EPA will

continue to regulate MSW ash under Subtitle D. See 56 Fed. Reg.

51,040 (1991).

42 As previously noted, these regulations impose stringent re-

quirements for the construction and maintenance of MSW landfills,

including requirements expressly designed to prevent the leaching

of metals. See n.15, supra.

27

111 S.Ct. at 1769. As the agency having ®xpertise over

the subject matter of the statute, EPA’s view was entitled

to deference.

CONCLUSION

The judgment of the court of appeals should be

reversed.

DAVID R. BERZ RICHARD RUDA *

DAVID B. HIRD Chief Counsel

FRANK PANOPOULOS JAMES I. CROWLEY

WEIL, GOTSHAL & MANGES STATE AND LOCAL LEGAL CENTER

1615 L Street, N.W. 444 North Capitol St., N.W.

Washington, D.C. 20036 Suite 345

(202) 682-7000 Washington, D.C. 20001

* Counsel of Record for the

August 19, 1993 Amici Curiae