Amicus Curiae Brief — Chicago v. Environmental Defense Fund

Supreme Court brief1994

Ask Donna

What actually matters in this document.

Text

}

| Aus 19 9F |

No. 92-1639 |

ee ev ot a CLERK ;

ie ' oem ee bees coo

A. ome a

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

THE CITY OF CHICAGO, et al.,

Petitioners,

Vv.

ENVIRONMENTAL DEFENSE FUND, INC., et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

BRIEF FOR THE CITY OF SPOKANE, WASHINGTON;

SPOKANE COUNTY, WASHINGTON; SKAGIT COUNTY,

WASHINGTON; CITY OF TACOMA, WASHINGTON; MARION

COUNTY, OREGON; RECOMP OF WASHINGTON; AND

REGIONAL DISPOSAL COMPANY AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

Craig S. Trueblood*

Robert B. Mitchell

Brian K. Knox

PRESTON THORGRIMSON

SHIDLER GATES & ELLIS

1400 Seafirst Financial Center

West 601 Riverside Avenue

Spokane, WA 99201-0636

(509) 624-2100

Attorneys for the Amici Curiae

* Counsel of Record

BEST AVAILABLE COPY ®

Table Of Contents

INTERESTS OF AMICI CURIAE. ...........0.cccccccccccsecccseeseeee. l

i casnnpumenonnieia 2

SUREREARY UF ARGSUREEINE .......0ccccccccccccccccccsscseseccecsseens 6

(ASE A SEN SCPE a OO re a 7

A. The Court of Appeals Erred in Refusing

to Defer to the EPA's Interpretation............. 7

l. The statute is silent with respect to

the specific issue of ash residues........ 8

2. The EPA's interpretation

comports with the policies

undertying RCRA........................000. 14

B. The Court of Appeals' Criticism of

the EPA is Misplaced............................0000. 20

l. The agency has not changed its

regulatory approach ........................ 20

2. The EPA's 1992 Memorandum

reflects the agency's considered

NE a cant 23

aa This Court Should Not Overturn State

and Local Solid Waste Management

Programs Implemented in Reliance on

the Exclusion of Ash from Subtitle C

ASSES SRE Re on ee 25

I itt in iad asiedaidendichemnntehdanvmemvonionecion 30

Table Of Authorities

Cases:

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

Defense Council, 467 U.S. 837 (1984)........ 8, 14, 23, 24

Citizens for Clean Air v. City of Spokane,

14 Wash. 2d 20, 785 P.2d 447 (1990)... 28

Consumer Product Safety Commission v. GTE

Sylvania, Inc., 447 U.S. 102, 117 (1980) ...00.0000...... 22

Crandon v. United States, 494 U.S. 152 (1990)........0000..... 19

EEOC v. Commercial Office Products, 486 U.S. 107,

a. ss ccscnsensosccesnsccnces 24

Environmental Defense Fund v. City of Chicago,

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

113 S. Ct. 486 (1992), aff'd on remand,

985 F.2d 303, cert. granted, 61 U.S.L.W.

EE 6 passim

Environmental Defense Fund v. Wheelabrator

Technologies, 725 F. Supp. 758 (S.D.N_Y.

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

cert. denied, 112 §.Ct. 453 (1991)........... 6, 9, 10, 13, 29

Federal Deposit Ins. Corp. v. Philadelphia Gear Corp.,

a sesasasencesconoces 24

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

Ce scsssseasesensevsee 19

NLRB v. Bell Aerospace, Co., 416 U.S. 267 (1974)........... 10

Pauley v. Bethenergy Mines, Inc., 111 S. Ct. 2524

SEIT ell chicctsersecnephennesepoeveneninntesesienaiaiciiuabesiiestdininddedibenniii mania

Pension Benefit Guarantee Corp. v. LTV Corp.,

a ee istics snceiseninsalntainictalisiitsicilamasnesimsaiee

Stinson v. United States, 113 S. Ct. 1913 (1993)...............

United States v. United Mine Workers of America,

i, ee iinirkntiitscesiiaiiasinscisiabiinsaiivilitanbaaimaene me

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

SEIT sciccecscsnsisicsonsessiititisietbisbadtounibaséenleeneuniienditinammiubiamnmseins

Statutes and regulations:

Federal

Clean Air Act Amendments of 1990,

Pub. L. No. 101-549, 104 Stat. 2399 (1990)...............

Hazardous and Solid Waste Amendments of 1984,

Pub. L. No. 98-616, 98 Stat. 3221 (1984)...

42 U.S.C. §§ 6901(a)(4), 6941 ooo. cccccccccccsssssesesseeesseeeeeeees

42 U.B.C. § GDOUG ND). accccaccscnnsscccsssscscsseccsssescssvsecenseee

SE I ociseceessnrmniniesinsename

42 U.S.C. $5 CBOE < COGB a acccancscccnsssscscseccssssessnsessenssees

42 U.S.C. § COODR) «...ca..ccue.ccocesccvssccssccccssscvvescvscescvessssese

42 U.S.C. § 6902(a)(1) ooo ooccccccccccseeceseccsseessseeesseeeseeeeee 18, 25

42 U.S.C. § 6903 (7) ooo ooooccccccccccssesssseeveseessseeseseeeeeveeeeeeee 12

42 U.S.C. § 6903034) ooo occcccccccccceccssseceseesesveeeseeeeee 11, 19

| ee, AE 3

42 U.S.C. § 69211) ooo eoccccccccccccsssecsesecsssvesseevssveeesvee | passim

42 U.S.C. § 6921 (1)(2) oo. occ cccccccccseccsssesessseesssessesevessveeseseeee 13

42 U.S.C. GG OBE ~ COD6 ance nccccneccccceeccccercccsoscsesoncseee 3

42 U.S.C. §§ 6921 - 6939D ooo ccccccccccccsecsessesssseeeseseseeee 3

| eT eee ents. 12

CE BR isorrccinireecttensittendenicia 25

42 U.S.C. § 6941a(3) ooone.cocccccccccsceccsseecsseesesseessneee ee 19

42 U.S.C. § 6942(c)(10) and (11) ooo. ooo cecccceoseeee 18, 25

| ne ee RT Sol 19, 25

42 U.S.C. §§ 6941 - 69498 ooo ccccccccceccssseesssessseeesseeee 3

I Be iiiiictiireiettnna 25

| | nee ee 25

I incertae eee 26

ORE. CUNO icici 26

NE Biv itintiniictiinetceiec ee 26

I ie alntbiaiaia 17

40 CFR. § 261.4(b)(1) (1992)............... 4,11, 15, 17, 24, 29

Se es ee I, CII oi eniccicciosshienscnicnenssmiivinieiudernasn 15

40 CFR. Pts. 262, 263 (1992) o.oo... cccccccccccceceveveveeeseeveve 29

State

Conn. Agencies Regs. §§ 22a-209-1, -8, -14 (1990) .......... 26

Fla. Admin. Code ch. 17-702 (1992).............cccccecceeeteeee. 26

Fla. Stat. Ann. § 403.7045 (West Supp. 1992) ......000000000.... 26

I a actaeietesininninationion 26

Mass. Regs. Code title 310, §§ 19.119, .131 (1992)........... 26

Mich. Comp. Laws §§ 299.432a - .432b (1991).......00.0...... 26

N.H. Code Admin. R. Dept. Env. Serv. Part Env.

RESIS NG ERR arse ee Sete Se 26

N.Y. Comp. Codes R. Regs. title 6, §§ 360-2.14, -3.5

a en ER AR eae MSE ee ea re 26

a I SUI I a cssiniprsninanieicenndeewnnnnnsenistasesiiie 26

Rs ts I I acartedanneredenennenenianencnniaeness 28

Wash. Rev. Code § 70.95.010(9) (1992)... 28

, BRU, CD GL, Fa Be CPOE cecsvcvncscrscccccesccesssesennnsess 2

Vil

Miscellaneous:

Exemption for Municipal Combustion Waste Ash

from Hazardous Waste Regulation Under

RCRA Section 3001(i) (Memorandum of

William K. Reilly, Administrator of the EPA,

to all regional administrators dated

I I tile crea aol ee i 5 passim

SD FOG. Tam, F506 GR. D, BGPBD qn. ..cccccccccecescevecsccescessees 27

45 Fed. Reg. 33,096-97 (May 19, 1980) .200.0.o.o cn. 3

45 Fed. Reg. 33,099 (May 19, 1980)... 5 passim

45 Fed. Reg. 33,104 (May 19, 1980) ..000.o....ceeee, 17

45 Fed. Reg. 33,119 (May 19, 1980) ..000.0. 3 passim

45 Fed. Reg. 33,120 (May 19, 1980)... 3, 11

49 Fed. Reg. 40,320 (Oct. 15, 1984) .0000 oes, 26

50 Fed. Reg. 28,725-26 (July 15, 1985)... 5, 21

51 Fed. Reg. 21,054 (June 10, 1986)... 27

56 Fed. Reg. 51,040 (Oct. 9, 1991) o.oo. 17, 18

Jeffrey M. Gaba and Donald W. Stever, Law

of Solid Waste, Pollution Prevention and

gg RE CELE CE 26

R. Goodwin, Defending the Character of Ash,

6 Solid Waste and Power 18 (1992)................. 15, 16, 18

Vili

1 NUS Corporation, Characterization of Municipal

Waste Combustion Ashes and Leachates from

MSW Landfills, Monofills and Co-Disposal

Sites ES-10 (1987) (EPA/S30-SW-87-028A).............. 16

Regulation of Municipal Solid Waste Incinerators:

Hearings on HR 2162 before the Subcommittee

on Transportation and Hazardous Materials of

the House Committee on Energy and Commerce,

101st. Cong., Ist Sess. 44 (May 11, 1989)......00000000.... 22

H. Sale, 7rash, Ash, and Interpretation of

RCRA, 17 Harv. Env. L. Rev. 409, 421

LT a EEE oA, CRANES epee nee 15, 16, 18

S. Rep. No. 94-488, 94th Cong., 2d Sess. 16

IR ER iat Se RR a iene OE ns ea Re 20

S. Rep. No. 284, 98th Cong., Ist Sess. 61 (1983)... .. 10, 12

1984 Spokane County Comprehensive Solid

Waste Management Plan Update........................... 27, 28

Alyce M. Ujihara and Michael Gough, Managing

Ash from Municipal Waste Incinerators 20

EIR Sas MESS tele Sl Sha NS 15

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

No. 92-1639

THE CITY OF CHICAGO, et al.,

Petitioners,

Vv.

ENVIRONMENTAL DEFENSE FUND, INC., et al.,

Respon‘ents.

On Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

BRIEF FOR THE CITY OF SPOKANE, WASHINGTON;

SPOKANE COUNTY, WASHINGTON; SKAGIT COUNTY,

WASHINGTON; CITY OF TACOMA, WASHINGTON;

MARION COUNTY, OREGON; RECOMP OF WASHINGTON;

AND REGIONAL DISPOSAL COMPANY AS AMICI] CURIAE

IN SUPPORT OF PETITIONERS

INTERESTS OF AMICI CURIAE

Amici are local governments and private companies in

the Pacific Northwest that share an interest in protecting

public health through cost-effective waste management.

Amici urge the Court to reverse the judgment of the court of

appeals and to hold that 42 U.S.C. § 6921(i), which excludes

resource recovery facilities burning municipal solid waste

from hazardous waste regulation, encompasses the ash

residues of that waste. !

As amici know from their own experience, local

governments face major challenges in seeking to dispose of

municipal trash. Resource recovery is a key weapon in the

war on waste.

Amici City and County of Spokane adopted resource

recovery in the 1980s to address shrinking landfill capacity

and threats to the drinking water supply caused by pollution

from existing landfills. Amici Skagit County, Marion County,

and Tacoma, like Spokane, chose recycling and resource

recovery as cost-effective waste disposal measures in the best

interests of their local communities. Whatcom County,

Washington, elected to use the private incineration and ash

landfill facilities of amicus Recomp of Washington. Amicus

Regional Disposal owns and operates a state-of-the-art ash

monofill in Klickitat County, Washington. This monofill,

constructed to the exacting standards of the Washington

Incinerator Ash Residue Act, Wash. Rev. Code ch. 70.138

(1992), serves Spokane and could become an ash disposal

site for other resource recovery facilities in the Pacific

Northwest.

STATEMENT

The Resource Conservation and Recovery Act of

1976 ("RCRA"), 42 U.S.C. §§ 6901 - 6992k, establishes a

comprehensive national framework for waste management.

RCRA sets forth minimum federal requirements to be

implemented at the state and local level. State and local

| The parties’ letters of consent have been filed with the Clerk, pursuant to

Rule 37.3 of the Rules of this Court.

governments may supplement RCRA's minimum requirements

with more stringent standards.

At the heart of RCRA is a distinction between wastes

that are regarded as “hazardous” and wastes that are not. See

42 U.S.C. § 6921. "Hazardous" wastes are a small subset of

"solid" wastes. Hazardous wastes are subject to stringent

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

6939b. Subtitle C standards detail all phases of hazardous

waste management, from the type-size on 55-gallon drum

labels to the design standards for large regional landfills.

Solid wastes are subject to an equally comprehensive but less

stringent set of minimum standards under Subtitle D of

RCRA, 42 U.S.C. §§ 6941 - 6949a.

Congress's decision to regulate hazardous wastes and

solid wastes separately rests on the sound judgment that

hazardous wastes pose the greatest risk to public health and

should be regulated more stringently than other wastes. At

the same time, Congress recognized that appiying Subtitle C

standards too broadly could discourage beneficial activities;

moreover, effective implementation of Subtitle C requires

focusing on those that generate the largest amounts of

hazardous waste. Congress therefore authorized exclusions

to its definition of hazardous waste. The Environmental

Protection Agency ("EPA") was given the authority to

identify and to regulate the wastes subject to Subtitle C. See

42 U.S.C. §§ 6921 - 6924. The states were given primary

responsibility for regulating the remaining waste stream.

In 1980 the EPA issued regulations identifying certain

solid wastes as hazardous. See 45 Fed. Reg. 33,119 (May

19, 1980). The EPA excluded from Subtitle C regulation

certain other solid wastes that might otherwise be regarded as

hazardous. See id. at 33,096 - 97. Among these were

"household wastes." See id. at 33,120, codified as 40 C.F.R.

§ 261.4(b)(1) (1992). Four years later, as part of the

Hazardous and Solid Waste Amendments of 1984, Pub. L.

No. 98-616, 98 Stat. 3221 (1984) (the "1984 Amendments"),

Congress added to RCRA a new Section 3001(i), entitled

"Clarification of household waste exclusion." The current

dispute addresses the scope and meaning of Section 3001(i).

Section 3001(i) provides:

A resource recovery facility recovering

energy from the mass burning of municipal

solid waste shall not be deemed to be treating,

storing, disposing of, or otherwise managing

hazardous wastes for the purposes of

regulation under this subchapter if--

(1) such facility--

(A) receives and burns only--

(i) household waste (from

single and multiple dwellings, hoiels,

motels, and other residential sources),

and

(ii) solid waste from

commercial or industrial sources that

does not contain hazardous waste

identified or listed under this section,

and

(B) does not accept hazardous

wastes identified or listed under this

section, and

(2) the owner or operator of such

facility has established contractual

requirements or other appropriate

notification or inspection procedures

to assure that hazardous wastes are not

received at or burned in such facility.

42 U.S.C. § 6921(i).

The EPA has never regulated ash from municipal

resource recovery facilities as a hazardous waste. The EPA's

"household waste" exclusion expressly encompassed the ash

residues remaining after incineration. 45 Fed. Reg. 33,099

(May 19, 1980). In 1985 the EPA stated that, while it did

not understand Section 3001(i) to cover ash residues that

routinely displayed a hazardous characteristic, it had no

reason to believe that such residues were hazardous under

existing rules, and it did not plan to subject resource recovery

facilities to additional regulatory burdens. 50 Fed. Reg. 28,

725-26 (July 15, 1985). Congress expressly forbade the EPA

from regulating ash from incineration units burning municipal

waste for a period of two years after enactment of the Clean

Air Act Amendments of 1990, Pub. L. No. 101-549, 104

Stat. 2399, 2584 (1990). Finally, the EPA determined last

September that it was unnecessary and inappropriate to

regulate ash under Subtitle C. Exemption for Municipal

Waste Combustion Ash from Hazardous Waste Regulation

Under RCRA Section 3001(i) (Memorandum of William K.

Reilly, Administrator of the EPA, to all regional

administrators dated Sept.18, 1992) ("EPA's 1992

Memorandum").

In the meantime, however, litigation arose challenging

the application of Section 3001(i) to ash residues. The

plaintiffs in two cases established that incinerator ash

frequently fails laboratory tests of toxicity. See

Environmental Defense Fund v. Wheelabrator Technologies,

725 F. Supp. 758, 761 n.6 (S.D.N.Y. 1989), affd, 931 F.2d

211 (2d Cir.), cert. denied, 112 S.Ct. 453 (1991) (nine out of

ten samples of ash from the Westchester Resource Recovery

Facility failed EP toxicity test); Environmental Defense Fund

v. City of Chicago, 948 F.2d 345, 346 (7th Cir. 1991),

vacated, 113 S. Ct. 486 (1992), affd on remand, 985 F.2d

303, cert. granted, 61 U.S.L.W. 3845 (1993) (32 out of 35

samples of ash from the Northwest Waste-to-Energy Facility

exceeded the standard for Extraction Procedure toxicity).

The United States Court of Appeals for the Second

Circuit concluded that incinerator ash was excluded from

regulation as a hazardous waste under Section 3001(i).

Wheelabratcr, 931 F.2d at 213. The Seventh Circuit, over

the dissent of Judge Ripple, held that it was not. Chicago,

948 F.2d at 352. This Court granted certiorari, vacated the

decision, and remanded for reconsideration in light of the

EPA's 1992 Memorandum. 113 S. Ct. 486 (1992). On

remand, the court of appeals affirmed its previous decision,

with Judge Ripple again dissenting. 985 F.2d 303 (7th Cir.

1993). This Court granted the City's petition for certiorari.

SUMMARY OF ARGUMENT

Section 3001(i) does not directly address incinerator

ash. The courts have divided on whether "treating,"

"disposing of," and "otherwise managing" hazardous wastes

encompass disposal of treatment residues (ash), or whether

those residues should rather be considered to be "generated"

in the process of incineration. Where, as here, congressional

silence has left a gap in the statute, courts should defer to the

reasonable interpretation of the agency charged with

enforcing the law. Both the context in which Congress acted

and the goals it sought to achieve strongly favor placing ash

within the statutory exclusion. The interpretation set forth in

the EPA's 1992 Memorandum is plainly permissible.

Deference to the EPA's interpretation is especially

appropriate in light of the complexity of RCRA and the many

policies that underlie it. The Seventh Circuit ignored these

considerations and, instead, focused on the alleged hazards of

ash. The court's factual assumptions are simply wrong: in a

landfill environment, ash is safer than untreated municipal

solid waste. The EPA's policy analysis supports excluding

incinerator ash from Subtitle C regulation.

The EPA's position is well-considered and consistent

with both its initial understanding of the household waste

exclusion and regulatory practice over the past 13 years.

Disregarding that history and adopting the Seventh Circuit's

approach would upset the long-term plans and contracts of

local governments that accepted Congress's invitation to

invest in resource recovery facilities. Such a draconian result

is neither necessary nor appropriate.

ARGUMENT

A. The Court of Appeals Erred in Refusing to Defer

to the EPA's Interpretation.

As the court of appeals acknowledged, each party to

this litigation argues that the plain language of Section

3001(i) supports its position. 948 F.2d at 348. The court

described Section 3001(i) as "a statute subject to varying

interpretations." Jd. at 350. Nevertheless, the court declined

to rely on the interpretation advanced by the EPA, the agency

charged with enforcing RCRA, because it regarded that

interpretation as “waffling" and “see-sawing." Jd. The court

also declined to rely on legislative history. Thus cast back on

the language of the statute, the court sought to divine

Congress's intent from the words Congress used. After

examining several statutory definitions, the court concluded

that keeping ash outside the scope of Section 3001(i) was

consistent with policy judgments that it assumed underlay

RCRA. See id. at 352.

Amici will show that the court of appeals’ policy

analysis rests on factual assumptions that are demonstrably

false. Unlike administrative agencies, courts are singularly ill-

equipped to make such judgments. In its decision following

this Court's remand, however, the court of appeals refused to

credit the EPA's 1992 Memorandum. Asserting that "the

language of Section 3001(i) is clear," 985 F.2d at 304, the

court ruled that the Administrator's policy arguments can only

be advanced to Congress. In so ruling, the court not only

disregarded this Court's mandate to follow Chevron, U.S.A.,

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

(1984), but also gave unwitting testimony to the soundness of

Chevron's precepts.

1. The statute is silent with respect to the

specific issue of ash residues.

In reviewing an agency's construction of the statute

that it administers, a court first asks "whether Congress has

directly spoken to the precise question at issue." /d. at 842.

If so, "the unambiguously expressed intent of Congress" must

be given effect. /d. at 843. If, on the other hand, "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." Jd.

Section 3001(i) does not directly address the status of

incinerator ash. The parties here and two courts of appeal

dispute the inferences that should be drawn from this silence,

as well as the scope and meaning of the terms used in the

Statute. In such a case, Chevron demands deference to the

agency's reasonable construction.

Section 3001(i) must be examined in context.

Congress enacted its “Clarification of household waste

exclusion” in 1984 mindful of the scope of that exclusion.

Without question, the EPA's then-current regulatory

exclusion encompassed incinerator ash. The EPA observed in

its 1980 preamble to the regulation creating the exclusion that

Congress, in passing RCRA, intended to exclude the entire

household waste stream from regulation under Subtitle C._ In

the EPA's view, this waste stream included ash residue

produced in the incineration of household waste:

Since household waste is excluded in all

phases of sis management, residues remaining

after treatment (e.g. incineration, thermal

treatment) are not subject to regulation as

hazardous waste.

45 Fed. Reg. 33,099 (May 19, 1980).

Had Congress meant to change this aspect of the

regulatory exclusion, it would have said so. After all, the

1984 Amendments did clearly extend the exclusion from

household wastes to municipal wastes generally, including

non-hazardous commercial and industrial wastes, subject to

adoption of procedures to guard against receipt or burning of

hazardous materials. Yet “[nJowhere in the 1984 exclusion,

nor in the Committee report that accompanied it, is there any

hint of a congressional intent to limit the scope of that earlier

exclusion.". Wheelabrator, 725 F. Supp. at 765. What this

Court noted in Young v. Community Nutrition Institute, 476

U.S. 974 (1986), is equally true here: “congressional failure

to revise or repeal the agency's interpretation is persuasive

evidence that the interpretation is the one intended by

Congress." /d. at 983 (quoting NLRB v. Bell Aerospace,

Co., 416 U.S. 267, 275 (1974)).

It cannot be credibly argued that ash remains excluded

from Subtitle C regulation pursuant +» the EPA's 1980

exclusion so long as it results from: tic incineration of

household wastes, but not if it is the product of burning other

municipal wastes. See Wheelabrator, 725 F. Supp. at 765.

Such an interpretation would make a hash of the 1984

Amendments. Moreover, it would run counter to the express

will of Congress to extend the scope of the exclusion beyond

household waste. See id. The most that can be said in favor

of respondents’ position is that congressional silence

regarding ash left a gap for the EPA to fill.

According to the court of appeals, the absence of the

term “generating” in a list of hazardous waste-related

activities in Section 3001(i) is critical: it limits the scope of

the exclusion. See 948 F.2d at 351.2 Congress may well

have determined, however, that the terms it used were

sufficient, if not better suited, to carry forward the existing

exclusion of incinerator ash.

2 The Report of the Senate Committee on Environment and Public Works

that accompanied Section 3001(i) states:

All waste management activities of [a resource recovery]

facility, including the generation, transportation, treatment,

storage and disposal of waste shal! be covered by the

exclusion, if the limitations . . . are met.

S. Rep. No. 284, 98th Cong., Ist Sess. 61 (1983). There is no indication that

Congress meant to narrow the waste management activities covered by the

statutory exclusion. See Wheelabrator, 725 F. Supp. at 764-65.

The specific terms used in Section 3001(i)--"treating,"

“storing,” "disposing of"--all appear in the original household

waste exclusion:

The following solid wastes are not hazardous

wastes:

(1) Household waste, including

household waste that has been collected,

transported, stored, treated, disposed,

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

45 Fed. Reg. 33,120 (May 19, 1980), codified as 40 C.F.R. §

261.4(b)(1) (1992). If the EPA did not see any need to use

the term "generation" for ash to be included in the scope of

its regulatory exclusion, it is doubtful that Congress would

have thought the term necessary for its statutory clarification

to have the same effect.

Nor should Congress have anticipated such an

interpretation. Section 3001(i) provides that a qualifying

resource recovery facility shall not be deemed to be "treating,

storing, disposing of or otherwise managing hazardous

wastes for the purposes of regulation under [Subtitle C]."

"Treatment" includes any process designed to change the

physical, chemical, or biological character of hazardous waste

so as to reduce its volume. 42 US.C. § 6903(34).

Incineration is such a process.*

3 The court of appeals noted that ash "is fundamentally different in its

chemical and physical composition from the . . . rubbish that goes in.” 948

F.2d at 351. The court of appeals, however, drew the wrong inference from

this observation: that ash was a “whole new substance,” subject to a different

form of regulation.

As Congress kiaew in 1984, the regulatory exclusion

defined ash as the "residues remaining after treatment." See

45 Fed. Reg. 33,099 (May 19, 1980). Section 3001(i)'s

specification of "treatment" reasonably includes "treatment

residues." Congress also expressly addressed disposal, and

ash is what a resource recovery center must dispose of. Like

the EPA before it, Congress was excluding an entire waste

stream, from collection to treatment to disposal of the

treatment residue, from regulation under Subtitle C.* The

notion that a "new" waste would be "generated" in the middle

of this process, requiring a separate exclusion for

"generation," is foreign to Congress's approach.

Section 3001(i) aiso speaks broadly of “otherwise

managing” hazardous waste. The statute does not define

“otherwise managing." The court of appeals decided,

however, that "otherwise managing" should be interpreted as

congruent with “hazardous waste management," which as

defined in 42 U.S.C. § 6903(7) does not include "generation."

The court ignored the fact that Subtitle C is captioned

"HAZARDOUS WASTE MANAGEMENT" and includes

standards for the generation of waste. 42 U.S.C. § 6922.

That Congress would focus on the niceties of definitional

4 The Senate Report observes:

Resource recovery facilities often take in... .

“household wastes” mixed with other non-hazardous waste

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

New section 3001(i) clarifies the orginal intent to include

within the household waste exclusion activities of a

resource recovery facility which recovers energy from the

mass burning of household waste and non-hazardous

waste from other sources.

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

language rather than statutory headings, and use fine gaps in

the former to mark a significant departure in regulatory

policy, is highly doubtful.

The other provisions of Section 3001(i) are also

inconsistent with the court of appeals’ interpretation. The

exclusion for resource recovery facilities contained in Section

3001(i) is conditioned on adequate assurances that the facility

will not accept hazardous wastes. See 42 USC. §

6921(i)(2). Such requirements are obviously intended to

improve the quality of the treatment residue, i.e., the ash. If

ash were not the focus of this exclusion, one would expect to

find similarly qualified exclusions for other solid waste

facilities (e.g., landfills). There are no such qualifications

elsewhere in the statute.

Beyond inconsistency, the court of appeals’

interpretation leads to absurdity. Under the court's reading,

Section 3001(i) provides only that a facility that does not

accept hazardous wastes will not be deemed to be handling

such wastes. This is wholly redundant. As the district court

observed in Wheelabrator, under this construction "it is

difficult to understand what, if any, benefit the [facility

derives from the exemption." 725 F. Supp. at 763 n.12.

Statutes should be construed in context. They should

be construed to avoid absurdity. The court of appeals’

interpretation of Section 3001(i) violates both canons of

construction. The most that can be said for respondents’

arguments is that Congress left a gap in the statute. Refusing

to credit the EPA's reasonable interpretation in these

circumstances is error.

2. The EPA's interpretation comports with

the policies underlying RCRA.

Deference to administrative agencies is especially

appropriate in an area that is complex and highly technical

and involves significant policy issues. Pauley v. Bethenergy

Mines, Inc., 111 §. Ct. 2524 (1991). As this Court has

explained:

Judicial deference to an agency's interpretation

of ambiguous provisions of the statutes it is

authorized to implement reflects a sensitivity

to the proper roles of the political and judicial

branches. As Chevron itself illustrated, the

resolution of ambiguity in a statutory text is

more often a question of policy than of law.

Id. at 2534. The court of appeals in this case, however,

esteemed its own policy judgments superior to those of the

EPA.

According to the court of appeals, to include

incinerator ash within Section 3001(i) would be an "absurd"

reading of the statute:

It is unlikely that Congress, in an express

effort to promote the proper disposal of

dangerous substances that otherwise would

seep into the ground and water table, would

sanction the dumping of massive amounts of

hazardous waste in the form of ash into

ordinary landfills.

948 F.2d at 352. Just as alarmist rhetoric is no substitute for

analysis, so the court's assertions regarding likely

congressional intent do not withstand scrutiny.

Ash tests positive for toxics for the simple reason that

incineration, by reducing the volume of municipal waste,

concentrates the heavy metals that are already in that waste.

These metals are more likely to seep into the ground and

water table if untreated solid waste (in much more "massive"

quantities) is placed in ordinary landfills. As combustion

liberates energy from the waste, moreover, it destroys

bacteria, viruses, and volatile organic compounds.

Consequently, ash is easier to handle and safer in a landfill

environment than the municipal solid waste ("MSW") that it

replaces.

Research supports these conclusions. Samples of

MSW combustion ash have been tested according to the

Extraction Procedure and the Toxicity Characteristic

Leaching Procedure ("TCLP"). These procedures simulate

landfill conditions by passing liquids through a waste sample

and measuring the constituents that leach into the liquid.> In

the laboratory, ash may be "hazardous" due to levels of heavy

metals, typically lead and cadmium, in the extraction liquids.

See H. Sale, Trash, Ash, and Interpretation of RCRA, 17

Harv. Env. L. Rev. 409, 421 (1993); R. Goodwin, Defending

the Character of Ash, 6 Solid Waste and Power 18, 18

(1992).¢

> The Extraction Procedure, referred to by the court of appeals (948 F.2d at

346), is the TCLP test's predecessor. The TCLP uses one of two leaching

fluids, depending on the results of a pre-test of the ash. Alyce M. Ujihara

and Michael Gough, Managing Ash from Municipal Waste Incinerators 20

(1989), 40 C.F_R. Pt. 261 App. II (1992).

® Respondents have argued that improved waste screening and more

recycling might enable resource recovery facilities to ensure that their ash

passes the TCLP. Respondent's Brief in Support of Certiorari, at 11 n.7 (June

1, 1993). By its terms, however, Section 3001(i) already conditions the

exemption on use of contractual restrictions and inspection procedures to

screen out materials that would impair ash quality. In suggesting further

Unless one knows how untreated MSW would fare

under the same test, one cannot say anything about the

relative hazards of ash. In the real world, studies show,

leachate from landfills containing only ash is consistently less

contaminated than leachate from landfills containing unburned

household wastes. See 1 NUS Corporation, Characterization

of Municipai Waste Combustion Ashes and Leachates from

MSW Landfills, Monofills and Co-Disposal Sites ES-10

(1987) (EPA/S30-SW-87-028A). The incineration process

diminishes household wastes’ toxicity by destroying the

volatile organics that can otherwise leach from the wastes.

Id. at 2-19.

Moreover, ash tends to solidify in landfills, rendering

immobile the heavy metal constituents that often cause it to

be categorized as "hazardous" in laboratory tests. Goodwin

at 20. Air pollution control equipment in resource recovery

facilities typically sprays lime reagents into combustion

exhaust to reduce acid gasses. These lime reagents mix with

the combustion ash and induce it to “set up into a pozzolanic

(concrete-like) product." /d at 18. See Sale at 424.

Consequently, the laboratory simulation data relied upon by

the court of appeals predict "much higher leaching of heavy

metals than actually occur[s].". Goodwin at 20. See Sale at

423. So stable is the ash residue from resource recovery

facilities that the concentration of metals in its leachate is

below EPA's maximum allowances for drinking water.

Goodwin at 20, Table 2. Over time, moreover, many of the

metals pass below the threshold of detectability. See id. at

20-22 and Table 3. Because unburned waste undergoes no

such stabilization, the heavy metals found in untreated MSW,

screening requirements, respondents demonstrate the inconsistency between

their interpretation and congressional intent.

though less concentrated, are more likely to leach into the

environment.

Not only is the court of appeals’ analysis of relative

safety critically ill-informed; in addition, the court fails to

address a number of policies other than safety that Congress

carefully balanced in the 1984 Amendments and in RCRA.

Review of these policies shows that exclusion of ash from

Subtitle C advances the same policy goals as exclusion of

unburned municipal wastes, and others as well.

Supporting the exclusion of municipal trash from

Subtitle C are a number of RCRA policy considerations: the

regulations available under Subtitle D;’ the cost of complying

with Subtitle C;% and the large volume of waste involved,

which would overwhelm EPA's Subtitle C program? The

same factors support excluding ash. Ash is subject to RCRA

Subtitle D regulation. See 56 Fed. Reg. 51,040 (Oct. 9,

1991); EPA's 1992 Memorandum, at 5.!° The cost of

7 See 45 Fed. Reg. 33,099 (May 19, 1980) (noting that exempted household

waste stream would be subject to Subtitle D).

8 The EPA found that, on a national basis, there is over a tenfold difference

between the per-ton cost of disposing of materials in Subtitle C facilities than

in a Subtitle D landfill. EPA's 1992 Memorandum, at 7.

9 Cf 45 Fed. Reg. 33,104 (May 19, 1980) (exempting from Subtitle C

hazardous wastes produced in small monthly quantities, because including

such wastes would overrun the Subtitle C program).

10 Effective October 9, 1993, EPA's Subtitle D program requires as a

nationwide minimum that landfills be lined, their leachate collected, and both

systems double-checked through ground water monitoring. See 40 C.F.R. Pt.

258 (1992). Even if leaching of ash occurs, therefore, the leachate will not

enter the ground water so long as the liner and collection system are

functioning.

af =

disposing of ash at Subtitle C facilities could be "enormous."

Id. at 7. Given the relative safety of ash residues, filling

Subtitle C facilities with massive quantities of ash would be a

gross misuse of resources.!!

Excluding ash from hazardous waste regulation also

furthers Congress's policy of encouraging resource recovery.

See 42 U.S.C. § 6902(a) ("The objectives of this chapter are

to . . . conserve valuable material and energy resources"). !?

See also 42 U.S.C. § 6902(a)(1) (federal assistance for

planning resource recovery); § 6942(c)(10) and (11) (state

plans must consider resource recovery facilities and markets

1! As one commentator states:

At the end of 1987, EPA estimated that the entire U.S.

hazardous waste capacity was 34 million tons. Yet, waste

combustion facilities in the U.S. generate from 7 to 9

million tons of ash per year. New hazardous waste

disposal space is politically difficult to site and expensive

to build.

H. Sale, 17 Harv. Env. L. Rev. at 432 (footnotes omitted).

12 The Congress finds with respect to energy, that--

(1) solid waste represents a potential source of solid fuel,

oil, or gas that can be converted into energy,

(2) the need exists to develop alternative energy sources for

public and private consumption in order to reduce our

dependence on such sources as petroleum products, natural

gas, nuclear and hydroelectric generation,

(3) technology exists to produce usable energy from solid

waste.

42 U.S.C. § 6901(d).

for energy recovery); § 6943(c) (federal assistance for

studying feasibility of resource recovery systems).

Finally, excluding ash from Subtitle C promotes

reduction of solid waste volume, since resource recovery

reduces the bulk of the material that must be placed in a

landfill. 42 U.S.C. § 6941a(3). See 42 U.S.C. § 6901(b)(8)

(calling for alternative land disposal practices to conserve

solid waste disposal site capacity); 42 U.S.C. § 6903(34)

("treatment" includes volume reduction).

In short, the rationale that the court of appeals

imputed to Congress--distinguishing between “hazardous"

ash and "safe" household waste--collapses in the light of real-

world expericnce. Ash poses /ess risk to the environment

than other forms of the household waste stream that are

excluded from regulation under Subtitle C. Ash is the

necessary concomitant of energy recovery and volume

reduction, two policies that RCRA expressly encourages.

What this Court observed in a case last term is equally true

here:

We should be especially reluctant to reject the

agency's current view, which . . . so closely fits

"the design of the statute as a whole and .. .

its object and policy."

Good Samaritan Hospital v. Shalala, 113 §. Ct. 2151, 2161

(1993) (quoting Crandon v. United States, 494 U.S. 152, 158

(1990)). The Court should defer to the EPA's interpretation

of Section 3001(i) as excluding ash residues from Subtitle C.

B. The Court of Appeals' Criticism of the EPA is

Misplaced.

According to the court of appeals, "the EPA has

changed its view so often that it is no longer entitled to the

deference normally accorded an agency's interpretation of the

statute it administers." 985 F.2d at 304. The court mistakes

agency caution for vacillation. Review of the history of the

EPA's policy regarding ash management and its interpretation

of Section 3001(i) confirms that deference to the EPA's views

is fully appropriate.

1. The agency has not changed its regulatory

approach.

The starting point for considering the EPA's position

on this issue is its 1980 regulatory exclusion for household

wastes. The EPA understood that Congress, in enacting

RCRA, expected the entire household waste stream would be

excluded from Subtitle C regulation. See S. Rep. No. 94-

488, 94th Cong., 2d Sess. 16 (1976). In giving effect to this

expectation, the EPA stated that incinerator ash was part of

the excluded waste stream. See 45 Fed. Reg. 33,099 (May

19, 1980).

Like many others, the EPA was perplexed by the

"clarification" of the exclusion that Congress enacted in the

1984 Amendments. In its preamble to a regulation that

mirrored the language of section 3001(i), the EPA noted that

the statute was silent as to the status of residues from burning

combined household and non-household, non-hazardous

waste. EPA said it did not see in the statute an intent to

exempt ash that routinely exhibited a characteristic of

hazardous waste. EPA also said, however, that it did not

know whether this would be an issue:

EPA has no evidence to indicate that these ash

residues are hazardous under existing rules. . .

. Given the highly beneficial nature of resource

recovery facilities, any future additional

regulation of their residues would have to

await consideration of the important technical

and policy issues that would be posed in the

event serious questions arise about the

residues.

50 Fed. Reg. 28, 725-26 (July 15, 1985).

By 1987 the EPA was openly expressing doubt about

its reading of congressional intent. Testifying before the

Senate Subcommittee on Hazardous Waste and Toxic

Substances of the Committee on Environment and Public

Works, the EPA official responsible for implementing RCRA

stated:

The Agency has reexamined that interpretation

and now concludes that it may have been in

error. The Agency believes that the language

and legislative history of Section 3001(i) were

probably intended to exclude these ash

residues from regulation under Subtitle C.

It seems clear that Congress’ interest in

Section 3001(i) was to encourage energy

recovery. Under the section, the reach of the

household exclusion was to be extended for

facilities that recover energy. The Agency's

prior interpretation of the section would

restrict the exclusion with respect to ash

residue for facilities that recover energy as

well as those that do not. This appears

inconsistent with the reach of the household

aiis

exclusion itself (which clearly covers ash). It

also appears inconsistent with the expressed

legislative intent... .

December 3, 1987, testimony of J. Winston Porter at 16-17.

By 1989 the EPA had resolved the safety concerns

that supported early caution. Testifying in support of a bill

that would have resolved the ambiguity in Section 3001(i) by

explicitly authorizing regulation of incinerator ash under

Subtitle D rather than Subtitle C, EPA's Director of the

Office of Solid Waste concluded that "a special waste

program under Subtitle D, tailored to ash, could be

consistent, practical, and environmentally safe." Regulation

of Municipal Solid Waste Incinerators: Hearings on H.R.

2162 before the Subcommittee on Transportation and

Hazardous Materials of the House Committee on Energy and

Commerce, 10\st Cong., Ist Sess. 44 (May 11, 1989)

(testimony of Sylvia Lowrance). See also id. at 33.3

The EPA's 1992 Memorandum, which officially

superseded its 1985 document regarding Section 3001(i), is

consistent with both the views expressed by Mr. Porter five

years earlier regarding congressional intent and Ms.

Lowrance's 1989 judgment concerning safety. Following a

detailed analysis of the statute and its legislative history, the

EPA observed that "the two statutory goals embodied in

section 3001(i)--protecting the environment and promoting

resource recovery from non hazardous solid waste--are best

'3 Neither the introduction of subsequent legislation nor its fate is relevant

to the interpretation of congressional intent in 1984. See United States v.

United Mine Workers of America, 330 U.S. 258, 282 (1947), Consumer

Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 117

(1980), Pension Benefit Guarantee Corp. v. LTV Corp., 496 U.S. 633

(1990).

served by exempting MWC [municipal waste combustion] ash

from hazardous waste regulation.” EPA's 1992

Memorandum at 5. With regard to the former, “EPA has

determined that MWC ash can be regulated in a manner that

will be protective of human health and the environment under

Subtitle D." Jd. With respect to the latter, the EPA stated:

If section 3001(i) were interpreted as not

exempting MWC ash derived from the

incineration of combined household waste and

nonhazardous commercial and industrial waste

from regulation as hazardous waste, the policy

goal stated in the Senate Report [of

encouraging commercially viable resource

recovery facilities} could be substantially

frustrated.

Id. at 4.

The EPA has consistently declined to extend Subtitle

C regulation to the ash residues of municipal solid waste

incineration. There is no warrant for this Court to do what

the agency has deemed unnecessary and inappropriate.

2. The EPA's 1992 Memorandum reflects the

agency's considered judgment.

Even if the court of appeals’ characterization of the

EPA position as “waffling" had merit, that would not justify

disregarding the agency's current interpretation. As this

Court observed in Chevron:

An initial agency interpretation is not instantly

carved in stone. On the contrary, the agency,

to engage in informed rulemaking, must

consider varying interpretations and the

wisdom of its policy on a continuing basis.

467 U.S. at 863-64. In this case, as in Chevron, the agency

has “considered the matter in a detailed and reasoned

fashion." /d. at 865 (footnote omitted). Its interpretation,

informed by experience and reflection, is eminently

reasonable. Such an interpretation deserves respect.

The form in which this interpretation appeared--a

policy memorandum--is no less deserving of deference than a

formal regulation. See Federal Deposit Ins. Corp. v.

Philadelphia Gear Corp., 476 U.S. 426, 439 (1986); EEOC

v. Commercial Office Products, 486 U.S. 107, 115 (1988).

The EPA frequently relies upon memoranda to set forth its

understanding of important regulatory issues. Moreover, the

EPA was interpreting an existing regulation: its original

household waste exclusion, supplemented by the language of

Section 3001(i). See 40 C.F.R. § 261.4(b)(1) (1992).'4

Construing this exclusion to cover ash did not require a new

regulation in 1992 any more than in 1980, when the EPA first

promulgated the exclusion. Then and now, the exclusion

covers a specific waste stream, including final disposal of

treatment residues. See 45 Fed. Reg. 33,099 (May 19, 1980);

EPA's 1992 Memorandum, at 2, 4.

'4 This Court has frequently held that an agency's interpretation of its own

regulations should be given controlling weight unless that interpretation 1s

plainly erroneous, inconsistent with the regulations, or violative of the

Constitution or federal statute. E.g., Stinson v. United States, 113 S. Ct.

1913, 1919 (1993). The EPA's express understanding, both in 1980 and in

1992, that its household waste exclusion encompasses ash residues must be

upheld under this standard.

C. This Court Should Not Overturn State and Local

Solid Waste Management Programs Implemented

in Reliance on the Exclusion of Ash from Subtitle

C Regulation.

In interpreting Section 3001(i), the Court should

consider the impact of its decision on the many public and

private entities that have made long-term decisions under the

statute and its precursor regulation over the past thirteen

years. Amici urge the Court not to undercut actions that

state and local governments have taken in the reasonable

belief that ash from resource recovery facilities is excluded

from regulation under Subtitle C.

RCRA envisions that local governments will assume

front-line responsibility for solid waste planning and

management. Congress mandated minimum federal standards

for waste disposal facilities but encouraged cities and

counties to select facilities best suited to the local climate,

geology, economy and demography. To facilitate local

control over solid waste management, Congress provided

technical and financial assistance to local governments. 42

U.S.C. §§ 6901(a)(4), 6941.

Through RCRA, Congress expressly invited local

governments to plan and implement resource recovery. 42

U.S.C. § 6941 ("The objectives of [Subtitle D] are to assist in

developing and encouraging methods for the disposal of solid

waste . . . which maximize the utilization of valuable

resources including energy and materials which are

recoverable from solid waste... ."). See 42 U.S.C. §§ 6943,

6947(b) (ensuring that state solid waste plans supported local

resource recovery efforts); 42 U.S.C. § 6902(a)(1) (federal

assistance for planning resource recovery); 42 U.S.C. §

6942(c)(10) and (11) (state plans must consider resource

recovery facilities and markets for energy recovery); 42

USC. § 6943(c) (federal funds contingent upon states’

support for municipalities’ resource recovery efforts) .

Local governments took up resource recovery as a

solid waste management option not just because of

congressional urging, but also because the traditional waste

management method--placing unburned waste in landfills--

had failed. "In 1986, 22 percent of the sites that were listed

or proposed for listing on the National Priorities List under

CERCLA were municipal solid waste landfills." Jeffrey M.

Gaba and Donald W. Stever, Law of Solid Waste, Pollution

Prevention and Recycling § 4.01 (1992).'5

As local governments opted for resource recovery in

reliance upon the exclusion set forth in Section 3001(i),

several states promulgated special solid waste programs for

characteristics of ash; they do not coincide with all of the

requirements of Subtitle C's "“cradle-to-grave" hazardous

waste management system. All such programs would be

1S "CERCLA" or the Comprehensive Environmental Response,

Compensation and Liability Act, 42 U.S.C. § 9601 et seq. is the federal

statute requiring cleanup of sites where hazardous substances have been

released to the environment. Sites are added to the National Priorities List

under CERCLA only if the EPA finds that they present a significant risk to

public health or the environment compared to other sites in the nation. See

42 U.S.C. § 9605(a)(8). These sites are commonly referred to as "Superfund

sites.” 49 Fed. Reg. 40,320 (Oct. 15, 1984).

16 See, e.g., Mich. Comp. Laws §§ 299.432a - .432b (1991); Fla. Stat.

Ann. § 403.7045 (West Supp. 1992); Fla. Admin. Code ch. 17-702 (1992);

Code Me. R. ch. 403 (1990), Mass. Regs. Code title 310, §§ 19.119, .131

(1992), Conn. Agencies Regs. §§ 22a-209-1, -8, -14 (1990), N.Y. Comp.

Codes R. Regs. title 6, §§ 360-2.14, -3.5 (1992); N.H. Code Admin. R. Dept.

Env. Serv. Part Env. Wm 2602 (1992), 25 Pa. Code § 75.37 (1991).

rendered moot if the court of appeals’ interpretation were

upheld.

Amici City and County of Spokane illustrate the

process by which local governments came to incorporate

resource recovery into their municipal waste management

strategies. For Spokane, resource recovery addressed not

only a crisis of landfill capacity but also a crisis surrounding

the community's drinking water. The citizens of Spokane

draw their water from the Spokane Valley-Rathdrum Prairie

Aquifer, which has been designated as the sole source of

drinking water for over 500,000 people. 43 Fed. Reg. 5,566

(Feb. 9, 1978). This aquifer is a fragile resource, subject to

pollution from landfills located above it.

These landfills have been a concern for many years.

In 1979 the Spokane County Engineer's office issued its

Water Quality Management Plan to Preserve the Quality of

the Spokane-Rathdrum Aquifer under Section 208 of the

Federal Water Pollution Control Act, 33 U.S.C. § 1288.

Noting contamination, the Water Quality Management Plan

recommended that resource recovery, recycling, and innova-

tive disposal methods be considered as alternatives to

landfills. In 1984 Spokane's Northside Landfill was placed on

the National Priorities List ("NPL"). Spokane's landfills at

Mica, Greenacres and Colbert were also added to the NPL.

51 Fed. Reg. 21,054 (June 10, 1986). The Mica, Greenacres

and Colbert landfills are now closed, and all but a few acres

of the Northside Landfill are closed as well.

In response to declining landfill capacity and threats

to its drinking water supply, Spokane began a regional public

planning process. The first step was to consider alternatives

to solid waste landfills. In 1981 Spokane began analyzing

resource recovery and recycling. Three years later it adopted

the 1984 Spokane County Comprehensive Solid Waste

Management Plan Update ("1984 Plan"). The 1984 Plan

includes specific elements for recycling, waste reduction and

resource recovery, garbage landfills are only a last resort.

The Washington Department of Ecology approved the 1984

Plan, and the Washington Supreme Court held that it was

consistent with the Washington Solid Waste Management

Act, Wash. Rev. Code ch. 70.95. Citizens for Clean Air v.

City of Spokane, 114 Wash. 2d 20, 785 P.2d 447 (1990).

To mitigate the effects of existing landfills as rapidly

as possible, Spokane aggressively implemented the recycling

and resource recovery elements of the 1984 Plan. Recycling

programs increased the recycling rate in Spokane County

from 5% in 1984 to 31% in 1992.!7 To manage the rest of

the waste stream, Spokane issued an environmental impact

statement and selected a site for a waste-to-energy facility

("WTE") in 1986. In 1987 Spokane signed a vendor contract

to build and operate the WTE, a power sales contract for the

electricity that the WTE generates, and a lease for the WTE

site. In 1989 Spokane issued $103 million in bonds and

accepted a $60 million grant from Ecology to design and

build the WTE and recycling programs. In 1990 Spokane

signed a long-term contract for ash disposal away from

Spokane's aquifer at amicus Regional Disposal Company's

new ash monofill in Klickitat County, Washington.

If the Court were to uphold the court of appeals’

decision, subjecting ash residues to Subtitle C regulation,

Spokane's costs would skyrocket. Whereas the total cost of

transportation and off-site disposal for ash at a new

Washington State monofill is $35-40 per ton, the disposal

17 Spokane's long-range goal is to recycle 50% by 1995, in accordance with

the goal set by the Washington Legislature. Wash. Rev. Code § 70.95.010(9)

(1992). See also Spokane County Comprehensive Solid Waste Management

Plan Update, at 82 (January 1992).

fees alone for Subtitle C landfills in the Northwest are

approximately $240-270 per ton. In addition to raising

disposal fees, Subtitle C would impose the costs of complying

with hazardous waste generator and _ transporter

requirements. See 40 C.F.R. Pts. 262, 263 (1992). The

financial calamity that Subtitle C would visit on Spokane's

resource recovery efforts illustrates the impact of a decision

upholding the court of appeals on similar programs

nationwide.

From the perspective of local governments and state

regulators faced with the need to establish long-term

programs during the 1980s, ash appeared to be excluded from

Subtitle C regulation. In 1980 the EPA interpreted its

original household waste exclusion to cover ash. Congress's

subsequent enactment of the Section 3001(i) retained all

relevant language from EPA's regulation and expanded its

scope. The district courts that addressed the issue agreed

that Section 3001(i) excluded ash from Subtitle C.'*

Cities, counties, and the private companies that

contract with them have established substantial long-term

commitments formed around the EPA's original exclusion of

the household waste stream from Subtitle C regulation. It is

completely unnecessary to undo more than a decade of public

planning and decision making. Were the court of appeals’

decision to be affirmed, resource recovery would be

profoundly damaged. This would be a tragic fate for a waste

18 Environmental Defense Fund v. Wheelabrator Technologies, 725

F. Supp. 758 (S.D.N.Y. 1989), aff'd, 931 F.2d 211 (2d Cir), cert. denied,

112 S. Ct. 453 (1991); 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,

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

granted, 61 U.S.L.W. 3845 (1993).

management strategy that Congress has actively promoted

and municipalities have adopted at great expense.

CONCLUSION

The Court should reverse the decision of the court of

appeals and hold, consistent with the EPA's interpretation of

Section 3001(i), that ash residues from qualifying resource

recovery facilities are excluded from regulation under Subtitle

Respectfully submitted,