Petition for Writ of Certiorari — City of Chicago v. Environmental Defense Fund

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IN THE pneeaserepiainscieeeen

Supreme Court of the uted States

OCTOBER TERM, 1991

GRBCE OF TEE CLERm

THE CITY OF CHICAGO, ef al.,

Petitioners,

ENVIRONMENTAL DEFENSE FUND, ef al.,

_ Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

KELLY R. WELSH

Corporation Counsel of the

City of Chicago

LAWRENCE ROSENTHAL

Deputy Corporation Counsel

BENNA RUTH SOLOMON *

Chief Assistant Corporation

Counsel

MARDELL NEREIM

Assistant Corporation Counsel

180 North LaSalle Street

Room 500

Chicago, Hlinois 60601

(312) 744-6975

Attorneys for Petitioners

* Counsel of Record

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

QUESTION PRESENTED

Whether Section 3001(i) of the Resource Conservation

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 wastes,’ exempts from hazardous

waste regulation ash generated by the burning of munici-

pal solid waste at such a facility.

(i)

PARTIES TO THE PROCEEDING

The petitioners are the City of Chicago and Richard M.

Daley, in his official capacity as Mayor of the City of

Chicago. The respondents are the Environmental Defense

Fund, Inc., and Citizens for a Better Environment.

TABLE OF CONTENTS

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PARTIES TO THE PROCEEDING ......00000 oo...

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(iii)

Page

TABLE OF AUTHORITIES

Cases: Page

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

Xe | Yb |. | | eee ncn ne passim

Statutes and Regulations:

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

§§ 6901-6992 (k)

§ COOL (a) ......--.---------ce-nneenceeeeeeeeceseceneeennsenenseeenses 14

§ COOL (Db) (1) n.eeeee-nnenecesceeeccesseesceeeseensneseeetsenenens 14

§ 6901 (bd) (G) -..-------------0--seeeececeeseeeseeeseteeeeenetenteees 3

§ COOL (C) ....--------ceec-ecenneeceseeseeseeeeseecennessseneesneceees 14

§ COOL (A) -.....--------c-cceecenceeeeseeeseeecesenneneessenenssneneees 14

§ 6902 (1) ...-..-------s-ecenceneeeneecsesseeseeceneeneesnesenseneenenees 15

§ 6902 (10) .....-...---.---cennceeeeeeeeeceeceeeeeessnnteneeeenennees 15

§ COZ (11) ........-..-------ne-ceecceceecceeceenenesensnncesnennensees 15

§ COOB (5) .....-..-------cc-----ceeeceeeeeeeeeceeecseneenneneeseneees 4

§ G9OS (7) .....----------cc-c-eneeeeecseceneeeeseneensenenensesneeeeneess 13

§ 6903 (24) ......-.---c--cee-ceeeceeceeeeeecesseseneenntenenenenseeeses 3

§ GOOB (B4) .......-..----c--ceneceneseccecencenceeseenncennenesenses 13

S§ 6921-6939 ..............-----n-nceeceeceeeeeenecenesenseseennennenes 4

§ COQ (i) ........--.------s-nceencenccennercceccenssenceencenncenenenees passim

I anv snsenstinncsscencevenennsnecennenssnescennnntvenmnossene 4

S GODE nnn. .....n-ennencenneeneocsnsensectnccnnscennsesensenesnsneesnes 4

§ GO2QB (Gr) .....--------ce-ceeceecceenecencenersnerenensenneesesaneseees 11

S§ 6941-6949 ........-..-.----n-eneeceeceeeeecesceeeenenseennnneeses 4

§ GO41 (a) (2) ....-..--------.0--ce-ncennceeceeeeesneeereesennensenens 3, 15

§ GO41(a) (3B) -......--.---------c--ceeceesceeeenecesesneeenenenensces 3,15

§ C948 (d) (8) .....-..--------ne---eeeceeeeeeceeeeeeneeeneneneneees 15

S COT2 (a) ......--.---------c--ne-neenerccensrsceenecenseennensneasens 11,17

Pub. L. No. 101-549, § 306, 104 Stat. 2399 (1990) .... 16

40 C.F.R. (1991)

§ DAL.101 (Uk) ...n.--..---2. 2 --2nceenennnenennnneeenennsesnnnnnenaee 2

SI ceecncicnccnansncsnannssininssionsnesthsonsnioisnsnarkknebannancane 4

BE BED.DO-SD .......-...n..cesnnenosnsscceennecseniccenemnnnnannssnanes 4

NIN ict secssades to seeatxsmiewinnnn ister aespnasennnssanmiatansts 4

§ 264.1-264.1065 -..........-.---ncecececeesceecceeeseeseeeeesens 4

TABLE OF AUTHORITIES—Continued

Page

45 Fed. Reg. 33098 (1980)... ccccccccee cece 5

50 Fed. Reg. 28726 (1985) ....... RRA ADED rele se ees AO 17

56 Fed. Reg. 50978 (1991) ......... o.oo ccccccccccceceeeeeee 2,4

56 Fed. Reg. 50980 (1991) 2.0.0... cee ccc cee ccccceeeecceeee 2,3

Congressional Materials:

S. Rep. No. 988, 94th Cong., 2d Sess. (1976) ............ 5

S. Rep. No. 284, 98th Cong., 2d Sess. (1983) 6, 18, 15

H. Rep. No. 952, 101st Cong., 2d Sess. reprinted in

1990 U.S. Code Cong. & Admin. News 3867 _...... 16

Periodicals and Reports:

ICF, Inc., 1990 Survey of Selected Firms in the

Commercial Hazardous Waste Management In-

dustry, Draft Report (Sept. 17, 1991) _........... 9

Kiser, Municipal Waste Combustion in the United

States: An Overview, Waste Age, Nov. 1991... 3

National Solid Waste Management Ass’n, 1990

Landfill Tipping Fee Survey ....................0-..0-.-- 9

IN THE

Siuprene Court of the United States

OCTOBER TERM, 1991

No.

THE CITY OF CHICAGO, et al.,

¥ Petitioners,

ENVIRONMENTAL DEFENSE FUND, et al.,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioners, the City of Chicago and Mayor Richard M.

Daley, respectfully petition for a writ of certiorari to

review the judgment of the United States Court of Ap-

peals for the Seventh Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals, App., infra, 1a-

17a, is reported at 948 F.2d 345 (7th Cir. 1991). The

district court’s memorandum opinion and order of No-

vember 29, 1989, App., infra, at 18a-29a, is reported at

727 F. Supp. 419 (N.D. Ill. 1989).

JURISDICTION

The judgment of the court of appeals was 2-ntered on

November 19, 1991. The jurisdiction of this court is in-

voked under 28 U.S.C. $ 1254(1).

2 ,

STATUTE INVOLVED

42 U.S.C. § 6921(i)

Clarification of household waste exclusion

A resource recovery facility recovering energy from

the mass burning of municipal solid waste shall not

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

otherwise managing hazardous wastes for the pur-

poses of regulation under this subchapter, if—

(1) such facility—

(A) receives and burns only—

(i) household waste (from single and mul-

tiple dwellings, hotels, mctels, and other resi-

dential sources},

(ii) solid waste from commercial or in-

dustrial sources that does not contain hazardous

waste identified or listed under this section, and

‘B) does not accept hazardous wastes identified

or listed under this section, and

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

tablished contractual requirements or other ap-

propriate notification or inspection procedures to

assure that hazardous wastes are not received

at or burned in such facility.

STATEMENT

1. Background. The country is now in the midst of a

waste disposal crisis. We generated approximately 180

million tons of municipal solid waste—the “residential

and commercial solid wastes generated within a com-

munity” (40 C.F.R. § 241.101(k}) in 1988; that number

is projected to grow to 216 million tons by the year 2000.

See 56 Fed. Reg. 50978, 50980 (1991) (summarizing the

findings of Environmental Protection Agency study).

Much of that waste is now deposited in landfills, but we

are quickly running out of landfill capacity. In a 1986

study, 45% of municipal landfill owner operators re-

ported that their landfills would reach capacity by 1991.

Ibid.

More than fifteen years ago, Congress warned that

“alternatives to existing methods of land disposal must

be developed since many of the cities of the United

States” are running out of waste disposal sites. 42 U.S.C.

$ 6901(b) 16). More recently, Congress has determined

that “the recovery of energy and materials from munici-

pal waste, and the conservation of energy and materials

contributing to such waste streams, can have the effect of

reducing the volume of the municipal waste stream and

the burden of disposing of increasing volumes of solid

waste.” Jd. §$ 6941(a)(3). See also id. § 6941(a) (2)

(“solid waste contains valuable energy and material re-

sources which can be recovered and used thereby conserv-

ing increasingly scarce and expensive fossil fuels and

virgin materials’’).

Facilities that extract reusable materials from munici-

pal solid waste or convert solid waste into energy are

classified as “resource recovery” facilities under the Re-

source Conservation and Recovery Act (“RCRA”), 42

U.S.C. § 6903(24). As of November 1991, there were 137

resource recovery facilities in operation in the United

States, (Kiser, Municipal Waste Combustion in the United

States: An Overview, Waste Age, Nov. 1991, at 27),

eleven facilities under construction, and an estimated

additional 57 facilities in the planning phase. Jd. at 109.

These facilities generate power that is equivalent to the

amount of energy needed to supply electricity to 1.2 mil-

lion homes, or the amount produced by 30 million barrels

of oil. 7d. at 27.

The general federal statutes and regulations governing

waste disposal are an important part of the regulatory

matrix applicable to the operation of resource recovery

facilities. When Congress enacted RCRA, it directed that

“hazardous waste” be managed pursuant to a separate

regulatory scheme—set forth in Subtitle C of the stat-

ute—that establishes standards for the treatment, stor-

age, and disposal of such waste. See 42 U.S.C. $§ 6921-

6939.! Generators of hazardous waste must obtain an

identification number from the United States Environmen-

tal Protection Agency (EPA) before engaging in the

treatment, storage, transportation, or disposal of hazard-

ous wastes. See 40 C.F.R. § 262.12 (1991). Hazardous

waste must be packaged, labelled, and marked according

to specific regulations before it may be shipped. See id.

§ 262.30-33. It may be held only in approved containers

for specified periods of time. See id. § 262.34. Facilities

that treat, store, or dispose of hazardous waste must ob-

tain permits (see 42 U.S.C. § 6925), and must comply

with many regulations setting performance standards for

such facilities. See id. $6924; 40 C.F.R. § 264.1-264.

1065.

Disposal of non-hazardous waste is regulated under

Subtitle D of RCRA, which provides significantly less

stringent regulation than Subtitle C. See 42 U.S.C.

$§ 6941-6949. The EPA has recently promulgated regu-

lations setting minimum national standards for these

landfills. See 56 Fed. Reg. 50978 (1991).

Waste from homes and offices frequently contains some

components that qualify as hazardous waste under the

federal scheme. but Congress made clear in the legisla-

1The statute defines “hazardous waste” as ‘a solid waste, or

combination of solid wastes, which because of its quantity, con-

centration, or physical, chemical, or infectious characteristics may—

(A) cause, or significantly contribute to an increase in mortal-

ity or an increase in serious irreversible, or incapacitating

reversible, illness; or

(B) pose a substantial present or potential hazard to human

health when improperly treated, stored, transported, or disposed

of, or otherwise managed.”

42 U.S.C. § 6903(5).

tive history of RCRA that it did not intend to regulate

such “general municipal wastes” as hazardous waste.

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

EPA subsequently promulgated 2 regulation—the “house-

hold waste exclusion”—providing that “any material * * *

derived from households (including single and multiple

residences, hotels and motels * * *)” is not hazardous

waste within the meaning of the statute. 40 C.F.R.

$ 261.4(b) (1). This exclusion permits the disposal of all

household waste in a Subtitle D landfill, even if the waste

would qualify as hazardous waste under the generally

applicable statutory standar”.

At the time the EPA issued this regulation, it stated

that the exclusion extended to ash remaining after house-

hold waste was burned in an incinerator. “Since house-

hold waste is excluded in all phases of its management,

reidues remaining after treatment (eg., incineration,

thermal treatment) are not subject to regulation as haz-

ardous waste.” 45 Fed. Reg. 33098 (1980).

In 1984, Congress added a new provision to RCRA—

Section 3001(i)—entitled “Clarification of household

waste exclusion.” It states in pertinent part that “[a]

resource recovery facility recovering energy from the

mass burning of municipal waste shall not be deemed to

be treating, storing, disposing of, or otherwise managing

hazardous waste for the purposes of regulation under

this subchapter” if the facility receives and burns only

(a) household waste, and (b) commercial and industrial

solid waste that does not contain hazardous waste. 42

U.S.C. § 6921 (i).?

The Senate committee report accompanying this provi-

sion observed that resource recovery facilities often take

“In addition, the facility may not accept hazardous waste, and

the owner or operator of the facility must have “established con-

tractual 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) (2).

in household waste mixed with non-hazardous waste from

sources other than households, such as schools, churches,

and municipal buildings. The committee stated that “[i]t

is important to encourage commercially viable resource

recovery facilities and to remove impediments that may

hinder their development and operation. New section

(3001(i)] clarifies the original intent to include within

the household waste exclusion activities of a resource re-

covery facility which recovers energy from the mass

burning of household waste and non-hazardous waste

from other sources.” S. Rep. No. 284, 98th Cong., 2d

Sess. 61 (1983).

The question in this case is whether, pursuant to Sec-

tion 3001(i), the ash residue remaining after solid waste

is burned in a resource recovery facility may be disposed

of in a Subtitle D disposal facility, regardless of whether

the ash might qualify as a hazardous waste under the

generally applicable standard.

2. The Chicago Resource Recovery Facility. The City

of Chicago owns and operates a resource recovery facil-

ity, the Northwest Waste-to-Energy Facility (‘‘North-

west Facility’), where it burns municipal solid waste

and generates electricity, thereby reducing the volume of

waste disposed of in landfills and helping to reduce de-

pendence on imported oil for the generation of electvicity.

The facility processes approximately 14% of the munici-

pal solid waste produced in Chicago. R. 18. It also pro-

duces steam bv recovering the energy generated from

the combustion of the waste. The steam is used not only

for its own operations, but is also sold for $1 million to

nearby industry and for another $500,000 to the local

utility. Jbid. Finally, the facility recovers approximately

55 tons of tin cans and other ferrous metals each day,

which are sold to scrap metal dealers. [bid.

The ash remaining after the waste is burned is dis-

posed of at sanitary landfill located in Three Oaks, Michi-

gan, that receives only municipal incinerator ash. R. 18.

This is a lined landfill with a leachate collection system

and groundwater monitoring systems to monitor its per-

formance. /bid. The City does not test the ash produced

at the Northwest Facility to determine whether it is haz-

ardous and has not managed the ash as a hazardous

waste.

3. The Proceedings Below. The Environmental De-

fense Fund and Citizens for a Better Environment (here-

inafter collectively referred to as EDF) filed the com-

plaint in this case, allecing that the City violated several

provisions of RCRA, 42 U.S.C. $$ 6901-6992(k), by not

handling the ash produced at the Northwest Facility as

a hazardous waste pursuant to Subtitle C of RCRA. R.

1. The district court had jurisdiction over this federal

question pursuant to 28 U.S.C. § 1331. EDF simultane-

ously filed a similar action in the Southern District of

New York against Wheelabrator Technologies, Inc. and

Westchester Resco Co., which own and operate a resource

recovery facility in Peekskill, New York. See Environ-

mental Defense Fund v. Wheelabrator Techonologies, 725

F. Supp. 758 (S.D.N.Y. 1989), aff’d, 931 F.2d 211 (2d

Cir.), cert. denied, 112 S. Ct. 493 (1991).

In this case, the parties filed cross motions for sum-

mary judgment. R. 18, 30. The City’s position was that

Section 3001(i) exempted the process of incinerating

waste and producing ash at a resource recovery facility

from regulation as hazardous waste. In addition to

filing its own motion for summary judgment, EDF op-

posed the City’s motion on the grounds that the City had

not yet demonstrated that the City’s facility met the re-

quirements of Section 3001 (1).

The district court issued a memorandum opinion and

order holding that Section 3001/i) of RCRA exempted

the ash produced at resource recovery facilities from reg-

ulation as a hazardous waste. App., infra, at 18a. The

court held that when Congress amended RCRA to exempt

resource recovery facilities from hazardous waste regula-

tion, it intended to exclude all waste management activi-

ties at these facilities from regulation. /d. at 24a. The

district court found that this conclusion was consistent

with RCRA’s policy goal of encouraging resource recov-

ery facilities and removing impediments that may hinder

their development and operation. /bid. The district court,

however, denied both motions for summary judgment,

allowing EDF additional discovery to determine whether

the Chicago facility met the requirement of Section

3001(i) that it have adequate procedures for excluding

the intake of hazardous wastes. /d. at 29a.

EDF later stipulated that it would not contest the ade-

quacy of the Northwest Facility’s procedures for exclud-

ing hazardous wastes and would not oppose a renewed

motion for summary judgment by the City. R. 91. The

district court subsequently granted the City’s renewed

motion for summary judgment. App., infra, at 30a.

A divided court of appeals reversed. The majority held

that the ash generated by a municipal solid waste incin-

erator must be disposed of in accordance with the provi-

sions of Subtitle C of RCRA. App., infra, at 14a, 16a.

The majority focused on the Section 3001(i) exception

from hazardous waste regulations when a resource re-

covery facility is “treating, storing, disposing of, or

otherwise managing” waste, noting that that section does

not explicitly exempt the ash “generated” by such facili-

ties. App., infra, at 15a-16a. The majority acknowledged

that the only other appellate court to address this issue,

the Second Circuit in the Wiheelabrator case, had reached

the opposite conclusion. /d. at da. In that case, the Sec-

on Circuit concluded that Section 3001(i) of RCRA

exempted the ash remaining after incineration of munici-

pal solid waste at a resource recovery facility from regu-

lation as a hazardous waste. See Environmental Defense

Fund v. Wheelabrator Technologies, 931 F.2d at 213.

Judge Ripple dissented, stating that he would affirm

for the reasons stated in the Second Circuit and Southern

District of New York opinions.

REASONS FOR GRANTING THE PETITION

The Seventh Circuit’s decision in this case squarely

conflicts with the decision of the Second Circuit on an im-

portant issue of federal environmental law affecting re-

source recovery facilities throughout the country that

burn municipal solid waste to produce energy. Now,

resource recovery facilities located in the Second Circuit

may manage the ash remaining when they burn munici-

pal solid waste as a non-hazardous waste pursuant to

Subtitle D of RCRA, but, as a result of the decision be-

low, all resource recovery facilities in the Seventh Circuit

must manage the ash as a hazardous waste pursuant to

Subtitle C. These conflicting decisions destroy the uni-

formity necessary to the effectiveness of environmental

policy.

The conflict between the circuits also produces sub-

stantial hardship and unfairness. Subtitle C disposal is

considerably more onerous, and therefore, much more ex-

pensive, than disposal under Subtitle D.“. That additional

cost has been imposed on resource recovery facilities

within the Seventh Circuit, but not on facilities in the

Second Circuit.

Moreover, resource recovery facilities in other circuits

now face great uncertainty in determining how to man-

* For example, charges for disposing of a ton of waste at a Sub-

title D landfill in the Midwest averaye $22.15 per ton. National

Solid Waste Management Ass’n, 1990 Landfill Tipping Foe Survey,

at 7. A conservative 1990 average cost for required stabilization

and disposal of waste at a Subtitle C landfill is $210 per ton; nearly

ten times as much. See ICF, Ine., 1990 Survey of Selected Firms

in the Commercial Hazardous Waste Management Industry, Draft

Report (Sept. 17, 1991) (Prepared for U.S. Environmental! Protec-

tion Agency, Office of Policy Analysis). For the City’s Northwest

Facility, which must dispose of between 110,000 and 140,000 tons of

ash annually (App., infra, at 2a), the increased cost for disposal

alone could amount to more than $20 million dollars each year.

In addition, the City almost certainly would have to shoulder in-

creased costs for transportation of the ash because transporters

would have to comply with Subtitle C requirements.

age their ash. Their choice is to treat the ash as a haz-

ardous waste or ship it to a circuit where it has not

been held to be a hazardous waste, either way incurring

large and perhaps wholly unnecessary expenses that

would substantially alter the economics of running such a

facility. Or they may treat the ash as a non-hazardous

waste and risk the heavy penalties that may be imposed

in the event that other courts subsequently hold that the

ash is a hazardous waste that should have been managed

in accordance with Subtitle C. Transporters of ash and

operators of waste disposal facilities that receive ash face

similar uncertainty: they are all subject to huge mone-

tary penalties if they fail to comply with Subtitle C

requirements and those provisions are later held appli-

cable to ash. This state of affairs creates the anomalous

possibility that municipal waste in one circuit might now

be transported to another circuit for incineration. The

petition for a writ of certiorari should be granted in this

ease to resolve this conflict, eliminate the current uncer-

tainty, and alleviate the unwarranted burden on resource

recovery facilities in the Seventh Circuit.

1. The Second and Seventh Circuits have reached dia-

metrically opposed interpretations of Section 3001(i) of

RCRA. Section 3001(i) provides, in pertinent part, that:

A resource recovery facility recovering energy from

the mass burning of municipal solid waste shall

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

or otherwise managing hazardous wastes for the

purpose of regulation under [Subtitle C] * * *.

42 U.S.C. § 6921(i). The Seventh Circuit’s majority held

that because this section did not specifically provide an

exemption for generating hazardous waste, the ash pro-

duced by resource recovery facilities burning municipal

solid waste must be managed as hazardous waste, not-

withstanding the specific exemptions for “treating, stor-

ing, disposing of, or otherwise managing hazardous

wastes.” The Second Circuit, by contrast, interpreting

Section 3001(i) in the Wheelabrator case, held that this

section did exempt from hazardous waste regulation the

ash generated by the burning of municipal solid waste,

notwithstanding the absence of a specific exemption in the

statute for “generating” hazardous waste. Environ-

mental Defense Fund v. Wheelabrator Technologies, 725

F. Supp. 758, 765, 770 (S.D.N.Y. 1989), aff’d and

adopted, 931 F.2d 211 (2d Cir.), cert. denied, 112 S. Ct.

493 (1991).*

As a result of the conflict in the circuits, resource re-

covery facilities are uncertain how to plan and carry out

their operations. Local governments that operate or con-

tract with resource recovery facilities as well as disposal

site operators, are subject to substantial penalties under

RCRA—up to $25,000 per day—for mishandling hazard-

ous waste. See 42 U.S.C. $6928(¢). And, as this case

demonstrates, actions seeking penalties may be brought

by private parties, not just by the EPA. 42 U.S.C.

S$ 6972(a). Accordingly, the 97 resource recovery facili-

ties outside of the Second and Seventh Circuits and the

numerous waste disposal facilities in those 44 states must

now choose among incurring the very significant costs of

treating the ash as a hazardous waste, (see note 3,

supra), facing harsh RCRA penalties if they guess

wrongly about how the ash should be treated in their

circuit, or shipping waste to the Second Circuit for in-

cineration. Such a situation is intoleratble. Efficient

operations under a statute as complex and specific as

RCRA are severely compromised by this uncertainty.

The practical problems this lack of uniformity can

cause are well illustrated in this case. The City’s North-

west Facility is located in the City of Chicago, in the

Seventh Circuit. The ash produced at that facility was

* When this Court denied the petition in the Wheelabrator case.

there was no conflict between the circuits because the Seventh Cir-

cuit had not yet issued its opinion in the present case.

disposed of at a landfill located in Michigan, in the Sixth

Circuit. Although the ash is regulated as a hazardous

waste within the Seventh Circuit, the Sixth Circuit Court

of Appeals has not addressed the issue. But the landfill

that used to accept the ash from the Northwest Facility

is as effectively regulated as if there were law in that

circuit. The City of Chicago cannot, under the Seventh

Circuit’s ruling, continue to do business with the landfill

in Michigan, unless it moves its incinerator to the Sixth

Circuit, or contracts with an incinerator operator there.

The situation facing local governments in the First and

Third Cireuits is even more precarious. Under the

Wheelabrator case, a resource recovery facility in the

Second Cireuit can continue to dispose of ash under Sub-

title D of RCRA. But a disposal site in an adjacent cir-

cuit, where the court of appeals has not spoken, might

well refuse to accept municipal ash because of the fear

of RCRA penalties, should the First or Third Circuits

ultimately side with the Seventh in requiring such ash to

be managed as hazardous waste under Subtitle C. Yet,

waste from the First and Third Circuits could still be

shipped to the Second for incineration, although it is far

from clear which circuit’s law would apply in an action

seeking to impose fines on a local government sending its

waste to another circuit.

Federal reculation of the ash, whether under Subtitle

D or Subtitle C of RCRA, should be uniform throughout

the country. This Court should resolve this conflict so

that federal regulation of the ash does not depend upon

the location of the resource recovery facility and so that

resource recovery facilities and disposal sites can plan

and carry out their operations with certainty.

2. The decision of the Seventh Circuit majority is also

wrong. It is at odds with the plain language of the stat-

ute, its purpose, and intent. The language of Section

3001(i) is broad. It exempts the activities of a resource

recovery facility from all hazardous waste regulation—

those governing “‘treating, storing, disposing of, or other-

wise Managing” waste. The statutory definition of haz-

ardous waste “management” includes all “storage, trans-

portation, processing, treatment, recovery and disposal

of hazardous wastes.” 42 U.S.C. § 6903(7). “Treatment”

is defined, in part, as “any method, technique, or proc-

ess * * * designed * * * so as to render such waste * * *

reduced in volume.” 42 U.S.C. § 6903(34). These terms

plainly encompass producing and then handling and dis-

posing of ash. Thus, by holding that Subtitle C regu-

‘ations apply to the production and handling of ash, the

Seventh Circuit has violated the plain terms of Section

3001(i), which indicates that facilities like the North-

west [acility need not comply with the requirements

of Subtitle C because they do not treat or “manag[e]

hazardous wastes.”

The legislative history of Section 3001(i) also indi-

cates its scope. It clarifies that the ash produced at a

resource recovery facility is exempt from regulation.

The Report of the Senate Committee on Environment and

Public Works, which accompanied the proposed legisla-

tion and commented on Section 3001(i), clearly stated

that “|a]ll waste management activities of such a facil-

ity, including the generation, transportation, treatment,

storage and disposal of waste shall be covered by the ex-

clusion * * *.” S. Rep. No. 284, 98th Cong., 2d Sess. 61

(1983). In addition, Section 3001(i) is a clarification of

the EPA’s Household Waste Exclusion, “a previously

existing regulatory exclusion which clearly extended to

ash.” Wheelabrator, 725 F. Supp. at 765.

Because the EPA’s Household Waste Exclusion extends

to the ash produced when household waste is burned, the

result of the Seventh Circuit’s construction of the statute

is that ash produced by incinerators burning only house-

hold waste is exempt from Subtitle C regulation, but ash

produced by resource recovery facilities burning house-

hold waste and non-hazardous commercial waste is not.

See Wheelabrator, 725 F. Supp. at 765. Thus, the court

below has transformed a statute designed to provide an

incentive for resource recovery by relieving regulatory

burdens on resource recovery facilities that burn non-

hazardous commercial waste as well as household waste

into one that subjects those facilities to greater regula-

tion and inereased costs. That is precisely the opposite

of what Congress sought to achieve.

Indeed, if Section 3001(i) subjects the ash remaining

from the burring of municipal waste to Subtitle C regu-

lation, Section 3001(i) provides little if any regulatory

relief for resource recovery facilities because it fails to

exempt these facilities from one of the most onerous regu-

latory burdens. See Wheelabrator, 725 F. Supp. at 7638

n.12 (if ash is not exempt from regulation as a hazardous

waste “it is difficult to understand what, if any, benefit

[resource recovery facilities] derive[] from the exemp-

tion”). This misinterpretation of Section 3001(i) should

be corrected by this court.

3. Important policy considerations favor the resolution

of the question presented in this case. Disposal of gar-

bage is one of the major problems local governments are

facing today. Congress has recognized that the United

States is confronted with a solid waste disposal crisis,

due to an ever increasing volume of solid waste and a

rapidly diminishing amount of landfill space (see 42

U.S.C. §$ 6901¢a) and (b)), and that reliance on land-

fills as the primary method for solid waste disposal need-

lessly pollutes valuable land and results in the burial

of millions of tons of recoverable materials and energy

sources tsee id. §$ 6901(b) (1), (¢) and (d)). Congress

has found that the recovery of solid waste materials “can

reduce the dependence of the United States on foreign

resources and reduce the deficit in the balance of pay-

ments” (ihid.!, and that solid wastes represent a poten-

tial source of energy that can reduce the nation’s de-

pendence upon sources of energy such as petroleum prod-

ucts, natural gas, nuclear and hydroelectric generation

of energy (tid. § 6901(d)). When Congress amended

Subtitle D of RCRA in 1980, it found that:

(2) solid waste contains valuable energy and ma-

terial resources which can be recovered and used

thereby conserving increasingly scarce and expensive

fossil fuels and virgin materials;

(3) the recovery of energy and materials from mu-

nicipal waste, and the conservation of energy and

materials contributing to such waste streams, can

have the effect of reducing the volume of the munici-

pal waste stream and the burden of disposing of in-

creasing volumes of solid waste.

Id. § 6941(a)(2) and (3). Resource recovery facilities

further these congressional goals.

The conclusion of the majority below that Congress

would not have approved the disposal of hazardous ash

in ordinary landfills, App., infra, at 16a, ignored these

important reasons Congress had for encouraging the de-

velopment and use of resource recovery facilities. Con-

gress has made it clear that it intends to encourage re-

source recovery facilities. See 42 U.S.C. $$ 690211), (10)

and (11), 6948(d) (3). Indeed, the Senate Report ac-

companying Section 3001 /i) states that “[i]t is important

to encourage commercially viable resource recovery facili-

ties and to remove impediments that may hinder their

development and operation.” S. Rep. No. 284, at 61. The

congressional choice reflected in Section 3001(i) to ex-

clude the waste management activities of resource re-

covery facilities from hazardous waste management regu-

lations was intended to encourage resource recovery as

one of the solutions to this country’s mounting solid waste

disposal crisis.

The present confusion regarding the scope of the Sec-

tion 3001(i) exemption will have a significant deterrent

effect on development of additional resource recovery fa-

cilities. The cost of disposing of ash is an important

element of the economics of operating these facilities.

See note 3, supra. The municipalities considering such a

project cannot now determine whether resource recovery

Will be justified economically because they cannot make

any reliable projection of disposal costs. A municipality

would be unlikely to embark on such an expensive under-

taking when it has no way to predict the eventual costs

and, therefore, whether the anticipated revenues would

cover those costs. Thus, the uncertainty spawned by the

conflicting appellate decisions is at the present time

thwarting Congress’s clear purpose of encouraging use

of this technology.

4. Finally, both the Second Circuit and the Seventh

Circuit concluded that Congress has left the question of

the meaning of Section 3001(i) for judicial resolution.

See Wheelabrator, 931 F.2d at 213; App., infra, at 5a.

This conclusion was based upon Section 306 of the Clean

Air Act Amendments of 1990, which provides that:

For a period of 2 years after the date of the enact-

ment of the Clean Air Act Amendments of 1990,

ash from solid waste incineration units burning mu-

nicipal waste shall not be regulated by the Admin-

istrator of the Environmental Protection Agency

pursuant to section 3001 of the Solid Waste Disposal

Act. Such reference and limitation shall not be con-

strued to affect any activity by the administrator

following the 2-year period from the date of enact-

ment of the Clean Air Act Amendments of 1990.

Clean Air Act Amendments, Pub. L. No. 101-549, § 306,

104 Stat. 2399, 2584 (1990). The Conference Report

accompanying this section specifically stated that “(t]he

conferees do not intend to prejudice or affect in any

manner ongoing litigation, including Environmental De-

fense Fund v. Wheelabrator, Inc., 725 F. Supp. 758 (2d

Cir.) [sic] and Environmental Defense Fund v. City

of Chicago, Appeal No. 90-3060 (7th Cir.), or any state

activity regarding ash.” H. Rep. No. 952, 101st Cong.,

2d Sess. 335, 342, reprinted in 1990 U.S. Code Cong. &

Admin. News 3867, 3874. Both courts of appeals inter-

preted this section of the Clean Air Act Amendments to

mean that Congress intended to preclude the EPA from

promulgating any new regulations, but to allow the EPA

to enforce the regulatory scheme already in place. See

Wheelabrator, 931 F. 2d at 218; App., infra, at 5a. Both

courts concluded that Congress was waiting for the

courts to resolve the issue raised in these cases.> The two

courts, however, reached opposite conclusions about the

meaning of Section 3001(i). Because the courts of ap-

peals are in disagreement, it is up to this Court to pro-

vide Congress with a judicial resolution of that question.®

Moreover, the EPA, the agency charged with enforce-

ment of RCRA, has been unable to resolve this issue.

EPA regulations simply restate the language of Section

300111). See 40 C.F.R. § 261.4(b). A preamble to the

regulations stated that “EPA does not see in this pro-

vision an intent to exempt the regulation of incinerator

ash from the burning of non-hazardous waste in resource

recovery facilities if the ash routinely exhibits a charac-

teristic of hazardous waste.” 50 Fed. Reg. 28726 (1985).

*The Seventh Circuit stated that “it may well have been that

Congress wanted to see what the courts had to say before under-

taking any retooling of the curr:nt regulatory scheme.” App., infra,

at 5a. Similarly, the Second Circuit stated that “Congress simply

may have desired to maintain the status quo pending judicial resolu-

tion of the issues presented here and in City of Chicago. Once the

courts have spoken, Congress will be in a better position to evaluate

its options regarding the treatment of incinerator ash and to direct

its future legislative efforts accordingly.” Wheelabrator, 9831 F.2d

at 213.

* Although Congress is currently debating the reauthorization of

RCRA, it is by no means certain that the issue raised in this case

will be resolved by Congress. A new statute may not be enacted, or

it may not deal with this issue. Moreover, a new statute might be

prospective only, leaving all municipalities with resource recovery

facilities outside of the Second Circuit with potential liability for

substantal penalties in civil penalty actions, like this one, that can

be commenced by private parties (see 42 U.S.C. § 6972(a)), if the

issue of how the ash is to be regulated is not resolved by this Court.

Resource recovery facilities should not be left in a state of uncer-

tainty because of the mere possibility that Congress might act to

address this issue some time in the future.

It went on to state, however, that future regulation of

the ash “‘would have to await consideration of important

technical and policy issues that would be posed in the

event serious questions arise about the residue.” bid.

More important, since the EPA issued its regulations,

several EPA officials have stated conflicting views on

how the ash is to be regulated. See App., infra, at 10a-

12a. Nor has the EPA ever attempted to enforce a re-

quirement that the City manage the ash from the North-

west Facility as a hazardous waste. See R. 18. As a

result of this inconsistency, the Seventh Circuit con-

cluded that “‘[t]he see-sawing statements of the EPA to

which the district court gave ‘little weight’ deserve no

weight at all.” App., infra, at 12a.

In sum, there is a conflict between the circuits on an

important issue of environmental law: the management

of ash produced at resource recovery facilities. A fed-

eral statute that depends for its effectiveness on uniform

application throughout the country has been interpreted

to exempt the ash from hazardous waste regulation in the

Second Circuit, but to require the management of the ash

as a hazardous waste in the Seventh Circuit, with the

result that resource recovery facilities in all other cir-

cuits are uncertain how to manage their ash. Moreover,

Congress has indicated that it is waiting for judicial

resolution of this issue, and indeed there is no resolution

likely from any other quarter. The courts of appeals and

the EPA have been unable to resolve this issue. This

Court should, therefore, resolve the question whether Sec-

tion 3001(i) of RCRA exempts the ash produced at re-

source recovery facility from hazardous waste regulation.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

KELLY R. WELSH

Corporation Counsel of the

City of Chicago

LAWRENCE ROSENTHAL

Deputy Corporation Counsel

BENNA RUTH SOLOMON *

Chief Assistant Corporation

Counsel

MARDELL NEREIM

Assistant Corporation Counsel

180 North LaSalle Street

Room 500

Chicago, Illinois 60601

(312) 744-6975

Attorneys for Petitioners

February 18, 1992 * Counsel of Record

APPENDIX

LR neler aya

pe lh Celi

APPENDIX

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 90-3060

“NVIRONMENTAL DEFENSE FUND, INC., et al.,

Plaintiffs-A ppellants,

THE CITY oF CHICAGO, et al.,

Defendants-A ppellees.

Appeal from the United States District Court

for the Northern District of Illinois.

No. 88 C 769—James B. Moran, Chief Judge.

ARGUED May 10, 1991—DrcIpEp NOVEMBER 19, 199]

Before BAurr, Chief Judge, POSNER, and RIPPLE, Cir-

cuit Judges.*

BAUER, Chief Judge. In this case, we are asked to de-

termine whether the ash generated by a municipal solid

waste incinerator is “hazardous waste” that must be dis-

posed of in accordance with the provisions of Subtitle C

of the Resource Conservation and Recovery Act of 1976,

42 U.S.C. § 6901-6992 (“RCRA”). The incinerator in

question—the Northwest Waste-to-Energy Facility—has

* This opinion was circulated among all judges of this court in

regular active service Pursuant to Circuit Rule 40(f) because of

an apparent conflict with Environmental Defense Fund v. Wheel-

abrator Technologie 8, 725 F.Supp. 758 (S.D.N.Y. 1989), aff’d, 931

F.2d 211 (2d Cir. 1991). No judge favored rehearing en bane; Judge

Richard D. Cudahy did not participate.

been owned and operated by the City of Chicago (“the

City”) since 1971. Faced with rapidly diminishing space

for landfill, the City has turned to innovative methods to

dispose of the approximately 2.5 million tons of solid

waste generated each year. The Northwest Facility was

one of the first modern waste-to-energy resource recovery

facilities in the United States and the only one in the

State of Illinois. Each day, it receives for processing 200

to 250 truckloads of refuse, the bulk coming from resi-

dential units. The plant incinerates 350,000 tons of waste

annually. The steam generated from the combustion of

waste is used to run the facility.

The plaintiffs, the Environmental Defense Fund, Inc.,

and Citizens for a Better Environment (collectively,

“EDF”), filed a complaint against the City and its

mayor alleging that the City violated provisions of RCRA

and its regulations governing the handling of hazardous

waste. EDF maintains that the City is violating RCRA

by unlawfully storing, transporting, disposing of, and

otherwise handling the by-product of the incineration at

the Northwest Facility, the 110,000 to 140,000 tons of ash

produced every year. According to the EDF, the toxicity

level of the ash is high enough to qualify it as a hazard-

ous waste subject to special treatment under Subtitle C

of RCRA. Between 1981 and 1987, thirty-five samples

of ash from the Northwest Facility were tested. Out of

these, thirty-two exhibited enough lead, cadmium, or

both, to meet the standard for Extraction Procedure tox-

icity, which forms a part of Subtitle C.

Subtitle C establishes a regulatory scheme governing

the treatment, storage, and disposal of hazardous wastes.

(Non-hazardous waste is governed by Subtitle D_ of

RCRA.) Generators of hazardous waste must apply for

and receive a United States EPA identification number

before engaging in the treatment, storage, disposal,

transportation, or offering for transportation of hazard-

ous waste. See 40 C.F.R. § 262.12. Before shipping,

hazardous waste must be packaged, labelled, and marked

according to specific regulations. See 40 C.F.R.

§ 262.30-33. Hazardous waste must be accumulated in

approved containers and only for specified periods of

time. 40 C.F.R. § 262.34. Generators of hazardous waste

also must maintain certain records, and file biennial re-

ports with the EPA Regional Administrator. See 40

C.F.R. $ 261.40-43. The ash produced by the Northwest

Facility is not dealt with pursuant to this “cradle to

grave” regulatory scheme. Instead, it is shipped off to

Michigan for burial in a landfill cite that is not licensed

to accept hazardous wastes.

In the district court, the parties filed cross motions for

summary judgment. The City argued that the ash pro-

duced at the Northwest Facility is exempt from regula-

tion under section 3001(i) of RCRA, 42 U.S.C.

$ 6921(i), which provides that a resource recovery fa-

cility will not be deemed to be “treating storing, dispos-

ing of, or otherwise managing” hazardous wastes for the

purposes of regulation if the facility meets certain re-

quirements. In addition to filing its own motion for sum-

mary judgment, EDF also opposed the City’s motion on

the ground that the City had not demonstrated that the

Northwest Facility met the requirements of section

3001 (i).

On November 29, 1989, the district court issued a

memorandum and order, holding that section 3001(i)

exempted the ash produced at resource recovery facilities

from regulation as a hazardous waste. See Environmental

Defense Fund v. City of Chicago, 727 F. Supp. 419, 424

(N.D. Ill. 1989). The district court, however, denied

both motions for summary judgment, allowing EDF addi-

tional discovery to determine whether the Chicago facility

met the requirements of section 3001(i). In July 1990,

EDF stipulated that it would not contest the adequacy of

the Northwest Facility’s procedures for excluding haz-

ardous wastes and that it would not oppose a renewed

motion for summary judgment by the City. On August

20, 1990, the district court granted the City’s renewed

motion for summary judgment. This appeal followed.

This case turns on the construction of section 300111).

To make sense of this statute, we must sort through con-

flicting, often confusing, pronouncements from Congress

and the EPA. Indeed, the EPA’s various interpretations

of the statute have muddied the waters to such an extent

that courts have failed to give it the deference normally

accorded to an agency’s construction of a statute it ad-

ministers. See, e.g., Environmental Defense Fund v. City

of Chicago, 727 F. Supp. at 424; Environmental Defense

Fund v. Wheelabrator Technologies, 725 F. Supp. 758,

766 (S.D.N.Y. 1989), aff'd, 931 F.2d 211 (2nd Cir.

1991). The Second Circuit, the only appeals court to

interpret section 8001(i) thus far, concluded that the

statute exempts the ash remaining after the incineration

of municipal solid waste at a resource recovery facility

from regulation as a hazardous waste. Wheelabrator, 931

F.2d at 213.

As a threshold issue, we must consider whether, as the

City suggests, this case has been rendered moot by pas-

sage of the 1990 amendments to the Clean Air Act. Sec-

tion 306 of the amendments provides in part that “|f]lor

a period of 2 years after the date of enactment . . . ash

from solid waste incineration units burning municipal

waste shall not be regulated by the Administrator of the

Environmental Protection Agency pursuant to Section

3001 of the Solid Waste Disposal Act.” Pub. L. No. 101-

549, 104 Stat. 2399 (1990). When Congress enacted this

provision, it was well aware that this matter was pending

on appeal. The accompanying committee report explains,

“lt}he conferees do not intend to prejudice or affect in

any manner ongoing litigation, including Environmental

Defense Fund v. Wheelabrator, Inc., 725 F. Supp. 758

(2d Cir.) [sic] and Environmental Defe nse Fund v. City

of Chicago, Appeal No. 90-3060 (7th Cir.) [sic], or any

State activity regarding ash.” H. Rep. No. 952, 101st

Cong., 2d Sess. 335, 342, reprinted in 1990 U.S.C.C.A.N.

3867, 3874.

What all this means is that the amendments to the

Clean Air Act do not render this matter moot, but rather

maintain the status quo until the time Congress re-

authorizes RCRA. After that pericd expires, Congress

may determine whether it wishes to revise the statute

with regard to the ash question. Although we cannot say

for certain, it well may have been that Congress wanted

to see what the courts had to say on the issue before

undertaking any retooling of the current regulatory

scheme. Until then, the EPA is precluded from promul-

gating regulations on ash pursuant to section 3001(i).

Nothing in the amendments, however, suggests that the

EPA may not enforce the scheme now in place. What

that covers, exactly, is for us to determine.

Having concluded that the matter properly is before

us, we turn our attention to the district court’s decision.

As with all summary judgment determinations, we re-

view the matter de novo to decide whether the record as

a whole establishes that the defendant was entitled to

judgment as a matter of law. See, e.g., Santella v. City

of Chicago, 936 F.2d 328, 331 (7th Cir. 1991) ; Dieckhoff

v. Severson, 915 F.2d 1145, 1148 (7th Cir. 1990). Be-

fore we can proceed, we must trace our way through a

somewhat complicated statutory and regulatory scheme.

In 1980, EPA issued the “household waste exclusion,”

a regulation that explicitly exempted household waste

from the statutory definition of “hazardous waste.” See

45 Fed. Reg. 33,120 (codified as amended at 40 C.F.R.

S$ 261.4(b) (1) (1987)). The exclusion had the effect of

releasing households and municipalities from the burden

of complying with the cumbersome requirements of Sub-

title C. In the preamble to the regulation, the EPA stated

that. “{s]ince household waste is excluded in all phases

of its management, residues remaining after treatment

(e.g., incineration, thermal treatment) are not subject to

regulation as hazardous waste.” Jd.

Congress never ratified this statement in the form of

legislation. Instead, it enacted section 3001(i) in 1984

as part of the Hazardous and Solid Waste Amendments

to RCRA to “clarify” the EPA’s household waste exclu-

sion. (Actually, Congress was interested in excluding

from the extremely complex regulations that apply to

facilities that specifically target hazardous waste munici-

pal incinerators that inadvertently process hazardous ma-

terials that slip in with all the other junk.) Section

3001 (i) provided the following:

A resource recovery facility recovering energy from

the mass burning of municipal solid waste shall not

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

otherwise managing hazardous wastes for the pur-

poses of regulation under this subsection if—

(1) such facility—

(A) receives and burns only—

(i) household waste (from single and

multiple dwellings, hotels, motels, and

other residential sources), and

(ii) solid waste from commercial or

industrial sources that does not contain

hazardous waste identified or listed un-

der this section. ...

42 U.S.C. § 6921 (i).

Unlike the EPA preamble, section 3001(i) does not ex-

plicitly exempt the ash generated from resource recovery

facilities from regulation as a hazardous waste. Nonethe-

less, each party to this litigation argues that the plain

words of section 3001(i) support its position. The EDF

contends that the section 3001(i) exemption covers only

very specific activities of municipal incinerators that han-

dle household and commercial waste, including “treating,

storing, disposing of, or otherwise managing hazardous

Wastes,” but not the generating of hazardous wastes. In

contrast, the City maintains that “managing” hazardous

Wastes covers everything that a resource recovery facility

does, including the disposal of the ash residue resulting

from incineration of municipal solid wastes.

The EPA’s interpretation and the legislative history of

the statute do little to resolve this stand-off. Following

adoption of section 3001(i), the EPA incorporated its

provisions into EPA regulations. See 40 C.F.R. § 261.4

(b) (1). In a preamble to the new regulations, the EPA

explained:

The statute [section 3001(i)] is silent as to whether

hazardous residues from burning combined household

and non-household, non-hazardous waste are hazard-

ous waste. These residues would be hazardous wastes

under present EPA regulations if they exhibited a

characteristic. The legislative history does not di-

rectly address this question although the Senate re-

port can be read as enunciating a general policy of

non-regulation of these resource recovery facilities if

they carefully scrutinize their incoming wastes. On

the other hand, residues from burning could, in

theory, exhibit a characteristic of hazardous waste

even if no hazardous wastes are burned, for example,

if toxic metals become concentrated in the ash. Thus,

the requirement of scrutiny of incoming wastes

would not assure non-hazardousness of the residue.

NPA believes that the principal purpose of section

s0UT( gi [sic] was to prevent resource recovery fa-

cilities that may inadvertently burn hazardous waste,

despite good faith effort to avoid such a result, from

becoming subject to the Subtitle C regulations.

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

Although not an all-out endorsement, this statement

certainly runs in favor of subjecting the ash by-product

of incineration to Subtitle C regulation. But was, as the

EPA suggests, the legislative history silent on the ash

question? Both the Wheelabrator district court, as af-

firmed by the Second Circuit, and the district court here

held that the legislative history of RCRA demonstrates

that Congress intended to exempt resource recovery fa-

cilities—and the ash they produce—from hazardous waste

statutes and regulations. See Environmental Defense

Fund v. City of Chicago, 727 F. Supp. at 424; Wheel-

abrator, 725 F. Supp. at 770. For support, both courts

heavily rely on a statement in the Report of the Senate

Committee on Environment and Public Works, which ac-

companied the proposed legislation. The Report stated

that all waste management activities of such facilities are

included within the household waste exclusion, including

“the generation, transportation, treatment, storage and

disposal of waste... .” S. Rep. No. 284, 98th Cong., 2d

Sess. 61 (1983) (emphasis supplied). The Wheelabrator

district court indicated that the Report “could not be

more explicit”:

It includes the term “generation,” that term upon

which EDI places so much emphasis. While it is

true that the legislation itself does not include the

term generation and that it is the legislation with

which we are concerned, the legislative history is pro-

bative on the issue of Congress’ intent, given that the

scope of the statute is unclear on its face.

725 F. Supp. at 765.

But was congressional intent, as suggested by the

Wheelabrator Cistrict court, that “explicit?” On October

2, 1987, six senators and a member of the House ( Repre-

sentative Florio) sent two letters to Lee Thomas of the

EPA. Both letters struck the same notes. Only the first

lecter, signed by Senators Stafford, Durenberger, Chafee,

Burdick, Baucus, and Mitchell, is reproduced here:

We are writing to urge that the Agency [EPA]

refrain from issuing any policy statements or legal

interpretations of the Resource Conservation and Re-

covery Act as it relates to the management of ash

generated by municipal solid waste incinerators

pending further consultation and coordination with

Congress. We are concerned that the Agency may

be on the verge of interpreting these requirements,

possibly in a manner inconsistent with the law, at a

time our Committee is considering legislation spe-

cifically resolving this issue.

In our view, section 3001(i) of the Solid Waste

Disposal Act, often known as RCRA, as amended in

1984 does not exempt owners or operators of mu-

nicipal solid waste incinerators from their obliga-

tions: 1) to determine whether the ash residues gen-

erated by the incineration process are hazardous

wastes, and 2) to handle ash exhibiting hazardous

waste characteristics as hazardous wastes in accord-

ance with the requirements of Subtitle C of RCRA.

Thus, we concur in the Agency’s statement in the

preamble to the July 15, 1985 codification rule that

in the 1984 amendments Congress did not “exempt

the regulation |sie| of incinerator ash from the

burning of non-hazardous waste in resource recov-

ery facilities if the ash routinely exhibits a char-

acteristic of hazardous waste.”

Regulation of Municipal Solid Waste Incinerators: Hear-

ings on H.R. 2162 before the Subeommitee on Transpor-

tation and Hazardous Materials of the House Committee

on Enerqy and Commerce, 101st Cong., Ist Sess. 1-2

(May 11, 1989) (“Hearings on H.R, 2162’).

In another development, on May 11, 1989, Congressman

Thomas A. Luken, Chairman of the House Subcommittee

on Transportation and Hazardous Materials, called a

hearing on a proposed bill te regulate municipal solid

10a

waste incinerator ash under Subtitle D of RCRA. The

Congressman made the following commen.s in his open-

ing statement:

A statutory ambiguity has caused a great deal of

uncertainty with respect to how this ash should be

regulated. The very basic question of whether or not

ash should be regulated under subtitle D, as a solid

waste, or under subtitle C as a hazardous waste,

remains ambiguous in the statute... . This uncer-

tainty has been exacerbated by conflicting signals

sent by the EPA. That is not a criticism of EPA.

Originally the EPA stated that incinerator ash must

be tested for toxicity, and managed accordingly, but

more recently the EPA has made various pronounce-

ments which conflict with that original policy. It

has become clear that legislative action is needed.

With regard to the EPA’s lack of clarity on the sub-

ject, the “conflicting signals’ to which Congressman

Luken was referring begin with the preamble to the

household waste exclusion. It most definitely exempted

ash from regulation as a hazardous waste. The preamble

to the regulation that mirrored section 3001(i), however,

did not regard the statute as exempting from regulation

ash exhibiting characteristics of hazardous waste. This

difference is not explained away by later statements from

EPA officials. In December 1987, J. Winston Porter, the

Assistant Administrator for the Office of Solid Waste and

Emergency Response, testified before the Senate Subcom-

mittee on Hazardous Waste and Toxic Substances of the

Committee on Environment and Public Works. Porter

responded to a question regarding incinerator ash:

Currently, EPA’s regulations merely restate the

statutory language. In the preamble codifying this

statutory language, however, EPA advanced an in-

terpretation of the statute that would subject ash

residue’s [sic] from energy-recovering MWC’s

lla

{Municipal Waste Combustors] to Subtitle C regula-

tion if the ash exhibited a characteristic of hazard-

ous waste. The Agency has reexamined that inter-

pretation 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 regula-

tion 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 exclusion itself (which clearly covers

ash). It also appears inconsistent with the expressed

legislative intent that “[a]]l waste management ac-

tivities of such a facility, including the generation,

transportation, treatment, storage, and disposal of

waste shall be covered by the exclusion.”

Hearings on H.R. 2162, 16-17 (testimony of J. Winston

Porter).

Just a few months later, in May 1988, Sylvia Low-

rance, who was at that time the Director of the EPA’s

Office of Solid Waste, offered the following testimony to

the same congressional hearing:

In our codification of [section 3001(i)] we stated

that, in our view, the provision excludes energy re-

covery facilities burning household waste along with

nonhazardous waste from commercial and industrial

sources from regulation under subtitle C.

With regard to the ash, however, produced from

such facilities, we said in a 1985 nvtice that the ash

generated by these facilities which exhibits a charac-

12a

teristic of the hazardous waste must be managed as

a hazardous waste.

We continue to follow that 1985 policy, and that

is our current interpretation. However, there is sub-

stantial controversy surrounding that interpretation.

We are in litigation challenging the EPA’s inter-

pretation of section 3001(i). We believe the law is

ambiguous given it is silent with regard to treatment

of ash under that section.

We do believe it needs to be clarified. What we

believe is of paramount importance is that ash be

safely managed in a technically sound matter [sic].

Until this legal controversy is resolved, there is

going to continue to be uncertainty on the part of

communities trying to deal with their garbage crisis

with regard to what ultimate requirements and cost

will be for their municipal and waste management.

We very much support an approach such as the

one taken in H.R. 2162, which would provide clear

authority to the EPA to regulate municipal com-

bustor ash as a special waste under subtitle D of

RCRA.

Id. at 33 (testimony of Sylvia Lowrance).

So there you have it. In construing a statute, we

ordinarily have many tools at our disposal: the language

and apparent purpose of the statute, its background and

structure, its legislative history, and the bearing of re-

late statutes. What we have to work with here is a

statute subject to varying interpretations, a foggy legis-

lative pnistory, and a waffling administrative agency.

Where do we turn? The see-sawing statements from the

EPA to which the district court gave “little weight” de-

serve no weight at all. The Report of the Senate Com-

mittee on Environment and Public Works, which accom-

panied the proposed legislation, included the generation of

13a

waste within the household waste exclusion. Can we just

ignore the Report, even though the word “generating” is

nowhere to be found in the enacted statute?

It has been argued, both in this circuit and, most

notably in the Supreme Court opinions of Justice Antonin

Sealia, that recourse to legislative history to clarify the

meaning of statutory language is, at best, a shaky en-

deavor. Justice Scalia has written that use of legislative

history

is neither compatible with our judicial responsibility

of assuring reasoned, consistent and effective appli-

cation of [statutes], nor conducive to a genuine ef-

fectuation of congressional intent, to give legislative

force to each snippet of analysis . . . in committee

reports that are increasingly unreliable evidence of

what the voting Members of Congress had in mind.

Blanchard v. Bergeron, 489 U.S. 87, 99 (1989) (Scalia,

J. concurring in part and concurring in the judgment).

And as our Broother Easterbrook has noted regarding

pre-enactment legislative history,

[it] is a poor guide to legislators’ intent because it

is written by the staff rather than by members of

Congress, because it is often losers’ history ... ,

because it becomes a crutch... , because it compli-

cates the task of execution and obedience (neither

judges nor those whose conduct is supposed to be

influenced by the law can know what to do without

delving into legislative recesses, a costly and uncer-

tain process).

Matter of Sinclair, 870 F.2d 1340, 1343 (7th Cir. 1989).

In addition, post-enactment statements, such as we have

here, bear no necessary relationship to the forces at work

at the time of enactment: the preferences of the enacting

legislator and his or her constituency and the impact of

pressure groups.

14a

Every time Congress enacts legislation, it is acting in

context. Although “|[]]egislative history may be invalu-

able in revealing the setting of the enactment and the

assumptions its authors entertained about how their

words would be understood,” Sinclair, 870 F.2d at 1342,

statements made before and after enactment are not

necessarily the final word as to meaning. Congress was

well aware of the EPA’s position on ash when it enacted

section 3001(i). Although tossed around, the word “gen-

eration” was not used in the final product. Why should

we, then, rely upon a single word in a committee report

that did not result in legislation? Simply put, we

shouldn’t. The actual words of the statute—the end

product of the rough-and-tumble of the political process—

are the definitive statement of congressional intent.

Our task becomes simpler if we just begin with what

the statute actually says. See Watt v. Alaska, 451 U.S.

259, 265 (1981). Section 3001(i) mentions “the treat-

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

household and commercial waste,” but fails to include

among these activities generating a different waste prod-

uct entirely. To borrow a phrase from computer pro-

grammers, resource recovery quite literally is “garbage

in, garbage out,” but the “garbage” that emerges from

the incineration process—ash—is fundamentally different

in its chemical and physical composition from the plastic,

paper, and other rubbish that goes in. It does not follow

that the generation of hundreds of tons of a whole new

substance with the characteristic of a hazardous waste

should be exempt from regulation just because Congress

wanted to spare individual households and municipalities

from a complicated regulatory scheme if they inadvert-

ently handled hazardous waste. Such a reading of section

3001(i) would be inconsistent with RCRA’s policy of

encouraging the careful management of materials that

pose a danger to human health and the environment.

15a

Moreover, contrary to the City’s assertions, “otherwise

managing” and “generating” are not coextensive terms.

Statutory construction is a holistic endeavor: the only

permissible meaning is that which is compatible with the

“flesh and bones” of a law, from its overarching purpose

down to its individual words. Here, the individual words

in RCRA are so carefully defined, they cannot be inter-

changeable. Hazardous waste “management” is defined

to include a limited number of activities, including the

“collection, source separation, storage, transportation,

processing, treatment, recovery, and disposal of hazardous

wastes.” 42 U.S.C. § 6903(7) The statute goes on to

define some of these terms. Two of the most impor-

tant words for our purposes are defined in the following

manner. “Treatment” means:

any method, technique, or process, including neutral-

ization, 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 ren-

der such waste nonhazardous, safer for transport,

amenable for recovery, amenable for storage, or ve-

duced in volume. Such term includes any physical

activity or processing designed to change the physical

form or chemical composition of hazardous waste so

as to render it nonhazardous.

42 U.S.C. § 6903(34). The term ‘disposal’ means:

the discharge, deposit, injection, dumping. spilling,

leaking, or placing of any solid waste or hazardous

waste into or on any land or water so that such solid

waste or hazardous waste or any constituent thereof

may enter the environment or be emitted into the

air or discharged into any waters, including ground

waters.

42 U.S.C. § 690313). These definitions exclude “genera-

tion,” which is separately defined as “the act or process of

producing hazardous waste.” 42 U.S.C. £§ 690316). There

16a

is no overlap whatsoever, then, between hazardous waste

“management” and hazardous waste “generation.” It fol-

lows, therefore, that if the language of the exclusion is

limited to “management” activities of resource recovery

facilities, “generating” activities are subject to regula-

tion.

We should take at face value a statute’s plain language

so long as our reading is not absurd; we should ignore

a legislative history that results in a reading that is.

It is unlikely that Congress, in an express effort to pro-

mote the proper disposal of dangerous substances that

otherwise would seep into the ground and water table,

would sanction the dumping of massive amounts of haz-

ardous waste in the form of ash into ordinary landfills.

Accordingly, we hold that the ash generated from the

incinerators of municipal resource recovery facilities is

subject to regulation as a hazardous waste under Sub-

title C of RCRA. The decision of the district court is

REVERSED.

17a

RIPPLE, Circuit Judge, dissenting. For the reasons set

forth in Environmental Defense Fund v. Wheelabrator

Technologies, 725 F. Supp. 758 (S.D.N.Y. 1989), aff'd,

931 F.2d 211 (2d Cir. 1991), I would affirm the judg-

ment of the district court.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

l&a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 88 C 769

ENVIRONMENTAL DEFENSE FUND, INC. and

CITIZENS FOR A BETTER ENVIRONMENT,

Plaintiffs,

V8.

Ciry oF CHICAGO and RICHARD M. DALEY,

Mayor of the City of Chicago,’

Defendants.

MEMORANDUM AND ORDER

Plaintiffs Environmental Defense Fund, Inc. (EDF)

and Citizens for a Better Environment (CBE) bring this

action against the City of Chicago and its Mayor, seek-

ing injunctive relief and civil penalties under Section

7002 of the Resource Conservation and Recovery Act

(RCRA). Plaintiffs allege that the City has violated

certain provisions of RCRA, 42 U.S.C. § 6901 et seq.,

by generating hazardous waste and not complying with

the hazardous waste requirements under RCRA, subtitle

C. 42 U.S.C. $$ 6921-6939(b). We have before us plain-

tiffs’ and defendants’ cross-motions for summary judg-

ment pursuant to Rule 56 of the Federal Rules of Civil

Procedure. For the following reasons, both motions are

denied and plaintiffs are granted leave for additional

discovery.

1 Pursuant to Fed.R.Civ.P. 25(d) Richard M. Daley is substi-

tuted as a defendant in this action. He succeeds Eugene Sawyer

as Mayor of the City of Chicago.

19a

FACTS

The City is the owner and operator of a facility known

as the Chicago Northwest Incinerator, located at 700

N. Kilbourn Avenue in Chicago. This was one of the

first modern waste-to-energy resource recovery facilities

in the United States and is the only such facility in Il-

linois (aff. of John Ellis, plant manager, Dept. of Streets

and Sanitation, Chicago, at 3). Resource recovery fa-

cilities use highly engineered and controlled incineration

technology to process solid wastes, reducing their volume

and recovering usable energy in the form of steam or

electricity (aff. of Mosi Kitwana, Deputy Commissioner

ot Sanitation, Chicago, at £10). The Northwest facility

receives 200 to 250 truckloads of refuse each weekday

and processes some 350,000 tons of solid municipal waste

annually (Ellis aff. 17). According to Mr. Kitwana, at

least 99% of the waste received at the facility consists

of household waste (Kitwana aff. 14). The remainder

of the waste consists of commercial waste—primarily

paper and foodstuffs brought into the United States by

international flights arriving at O’Hare Airport—and

small quantities of contraband seized by law enforcement

officials (Kitwana aff. 714). The City contends that this

waste, and the small amounts of commercial waste col-

lected in Chicago, do not contain hazardous materials.

The facility is supposed to maintain rigid inspection

procedures. Household waste shipments are allegedly

spot-checked to ensure that they do not contain hazardous

wastes and commercial shipments carefully screened—

all to prevent the acceptance of hazardous wastes (Kit-

wana aff. § 15). Commercial waste shipments must also

be approved by the Bureau of Sanitation prior to accept-

ance. Finally, all commercial waste is supposed to be

physically examined and anv hazardous materials found

are to be sent back to the generator for proper disposal

(Kitwana aff. 7 15).

20a

Once the waste has been delivered, and inspected for

hazardous materials, it is processed through the facility

and reduced to an ash residue. The status of this ash

is what is at issue in this matter. Plaintiffs allege that

the ash is hazardous waste” and that the City has failed

to comply with the cradle-to-grave regulatory system that

governs storage, transport, disposal, and other handling

of hazardous wastes. See 42 U.S.C. §§ 6921 et seqg.; 40

CFR §§ 262.10 et seq.

The City contends that the ash remaining after incin-

eration at the Northwest facility is from a non-hazardous

waste stream and thus exempt from hazardous waste

regulations. It moves for summary judgment alleging

that there are no genuine issues of material fact in dis-

pute, and that 49 U.S.C. § 6921(i) and 49 CFR § 261.4

(b) (1) specifically exclude all waste management ac-

tivities of resource recovery facilities that receive house-

hold waste and non-hazardous commercial waste. On

cross-motions, plaintiffs contend that the generation of

toxic ash is not exempt from hazardous waste regulation

and that only certain activities of resource recovery fa-

cilities are exempt.

DISCUSSION

The central issue in this action is whether the ash resi-

due remaining after incineration is a hazardous waste

under subtitle C, or only a solid waste regulated under

subtitle D. Statutory ambiguity has caused a great deal

of uncertainty with respect to how this ash should be reg-

ulated. Plaintiffs contend that toxic ash generated by re-

source recovery facilities is hazardous and subject to

hazardous waste regulation. Defendants, on the other

hand, contend that ash remaining after the incineration

2 Plaintiffs contend that 32 samples of ash generated at the North-

west Facility have been tested for toxicity pursuant to the EP

toxicity test. Of those samples, 29 have exhibited levels of lead

and/or cadmium that exceed the level qualifying it as hazardous

2la

of household and non-hazardous commercial waste is ex-

empt from subtitle C regulation. We agree.

The Resource Conservation and Recovery Act was en-

acted by Congress to address our growing national solid

waste crisis, to promote the protection of health and the

environment, and to conserve valuable material and

energy resources. 42 U.S.C. $6902. The RCRA classi-

fies wastes as either hazardous (regulated under C, 42

U.S.C. §§ 6921-6939 (b)) or as non-harzardous (regulated

under D, 42 U.S.C. §$§ 6941-6949(a)). Subtitle C im-

poses rigorous safeguards and procedures on hazardous

waste management, while D essentially forbids the dis-

posal of solid waste in open dumps and provides signifi-

cantly less regulation than C. When Congress first en-

acted the RCRA in 1976 it did not initially identify

which wastes were subject to hazardous waste regula-

tion. Rather, it required the EPA to develop and promul-

gate criteria for identifying hazardous wastes. 42 U.S.C.

§ 6921(a). In 1980 the EPA issued regulations identify-

ing and listing hazardous wastes. Included in these regu-

lations was a provision known as the “household waste

exclusion.” 45 Fed.Reg. 33,120 (May 19, 1980). That

provision exempted the entire household waste stream,

including the ash residue from household waste, from

hazardous waste regulation and provided, in pertinent

part, as follows:

§ 261.4 EXCLUSIONS

(b) Solid wastes which are not hazardous

wastes. The following solid wastes are not

hazardous wastes:

(1) Household waste, including household

waste that has been collected, transported,

stored, treated, disposed, recovered (e.q.,

refuse-derived fuel) or reused. ‘Household

waste” means any Waste material (includ-

ing garbage, trash and sanitary wastes in

septic tanks) derived from households (in-

99.

cluding single and multiple residences,

hotels and motels. )

15 Fed.Reg. 33,120 (May 19, 1980) (codified as amended

at 40 CFR § 261.4(b) (1) (1982).

In the preamble to these regulations the EPA restated

its view that ash from the incineration of household

waste should be excluded from hazarodus waste regula-

tion, stating:

The Senate language makes clear that household

waste does not lose the exclusion simply because it

has been collected. Since household waste is excluded

in all phases of its management, residues remaining

after treatment (e.g., incineration, thermal treat-

ment) are not subject to regulation as a hazardous

waste. Such wastes, however, must be transported,

stored, treated and disposed in accord with the ap-

plicable state and federal requirements concerning

the management of solid waste...

45 Fed.Reg. 33,098 (May 19, 1980) (emphasis added).

When Congress amended the RCRA in 1984 to clarify

the household waste exclusion, it left unmodified the

EPA’s 1980 interpretation that ash from the incineration

of household waste should be excluded from hazardous

Waste regulation. 42 U.S.C. §$6921(i). Additionally,

Congress expanded this exclusion to include resource re-

covery facilities that also burn non-hazardous commercial

or industrial solid waste. The statute currently reads:

(i) Clayi thoati ye t House hold Waste Exclusion

\ resource recovery facility recovering energy

from the mass burning of municipal solid waste

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

posing of, or otherwise managing hazardous

wastes for the purpose of regulation under this

subchapter, 1f—

spe

aoa

(1) such facility—

(A) receives and burns only—

(i) household waste (from single and

multiple dwellings, hotels, motels and other

residential sources), and

(ii) solid waste from commercial or in-

dustrial sources that does not contain haz-

ardous waste identified or listed under this

section, and

(B) does not accept hazardous wastes

identified or listed under this seection, 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 re-

ceived at or burned in such facility.

42 U.S.C. § 6921(1) (1984).

The fact that Congress amended the RCRA _ without

directly renouncing the EPA’s 1980 interpretation that

ash from household waste is excluded from hazardous

waste regulation is significant. ‘Congressional failure

to revise or repeal [an] agency’s interpretation is per-

suasive evidence that the interpretation is the one in-

tended by Congress.” Young v. Community Nutrition

Institute, 476 U.S. 974, 983 (1986) (quoting NLRB v,

Bell Aerospace Co., 416 U.S. 267, 275 (1974), rev'd on

other grounds, NLRB v. Hendricks County Rural Electric

Membersi ip Corp., 154 USS. 170 (19S8]) r. Congress hav-

ing left untouched the EPA’s 1980 interpretation is per-

suasive evidence that it intended to exelude ash such as

this from subtitle C regulation.

Plaintiffs argue, however, that Congress did not intend

the household waste exclusion to apply to generators of

hazardous wastes such as defendants. According to plain-

24a

tiffs, the 1984 amendment exempts only certain activities

of resource recovery facilities (namely the treating, stor-

ing, disposing of or otherwise managing certain specified

wastes) and does not exclude the generation of hazardous

waste. Indeed, the current RCRA statute contains no

language indicating that waste such as ash, generated by

resource recovery facilities, should be excluded from haz-

ardous waste regulation. Therefore, plaintiffs’ claim that

defendants must comply with the RCRA’s hazardous

waste requirements because the ash defendants are gen-

erating is hazardous. We find this reasoning unpersua-

Sive.

When Congress amended the RCRA and clarified the

household waste exclusion, it meant to exclude all of the

waste management activities of a resource recovery fa-

cility from subtitle C regulation. This interpretation is

consistent with the RCRA’s stated policy goal of encour-

aging commercially-viable resource recovery facilities and

removing impediments which may hinder their develop-

ment and operation. The Senate Report which accom-

panied the 19%4 RCRA amendments supports this reading

and, in fact, defines the waste management activities of

a resource recovery facility to include generation. The

report provides that

jajil waste management activities of |resource re-

covery facilities,| including the generation, transpor-

tution, treatment, storage and disposal of waste shall

be covered by the exclusion... .

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

sis added),

That the EPA 1980 household waste exclusion does not

include the words “generation” or “ash,” but nevertheless

excludes the veneration of ash from hazardous waste reg-

ulation, provides further support that Congress meant to

exclude ash generated from household wate from subtitle

C. see 45 bed Rex, 33,120 (May 19, 1980). Plaintiffs

25a

do not dispute that the KPA initially interpreted the

household waste exclusion as excluding all of the waste

menagement activities of municipal incinerators accept-

ing only houschold wastes. In fact, plaintiffs concede that

the 1980 household waste exclusion was a “waste stream”

exclusion (pl. mem. at 20). Nonetheless, plaintiffs con-

tend that the 19X84 RCRA statute does not pertain to the

entire waste stream but, rather, is limited to a class of

resource recovery facilities that must meet certain re-

quirements. We disagree. Because the orivinal house-

hold waste exclusion covered the management of ash resi-

due, and the 194 clarifiction left untouched this interpre-

tation, we conclude that Congress must have meant to

adopt the HPA’s position. Had Congress intended to

change this interpretation, it would have so indicated in

the 1984 amendment.

The United States Conference of Mayors and the Na-

tional Resource Association have filed an amicus brief in

support of the City’s pesition and the Institute of Re-

source Recovery has done likewise.* They claim that

landfill capacity for hazardous wastes is limited, is being

rapidly depleted and is not beine replaced, and that a

requirement that ash be disposed of as a hazardous waste

would impefil the entire resource recovery program.

Plaintiffs dispute that gloomy assessment. Whether that

assessment is true or not, we are not persuaded that

Congress changed obligations by implication and without

specifically addressing and rejecting those concerns.

Since the 1981 amendment, the EPA has issued new

regulations interpreting the houschold waste clarification

provision. dO CER 261.4(bi (1) (1985). Plaintiffs argue

that these reoulations provide further support that Con-

gress did not iptend-to exclude the generation of ash from

hazardous weste regulations. In the preamble to these

regulations, the EPA seemed to believe that the 1984 stat-

4We here grant their motions to file those briefs.

26a

ute modified the earlier policy on ash. The EPA stated

that it did not see the 1984 amendments as an attempt

to exempt the regulation of ash residue.* See 50 Fed.Reg.

28,726 (1985). Recent statements from some EPA offi-

cials, following the issuance of the 1985 regulations, have

also indicated that the EPA does not consider ash to be

exempt from hazardous waste regulation. See Testimony

of Sylvia Lowrance, Director, Office of Solid Waste, EPA,

at Regulation of Municipal Solid Waste Incinerators:

Hearing Before the Subcommittee on Transportation and

Hazardous Materials of the House Committee on Energy

anu Commerce, 101st Congress, Ist Session (May 11,

1989).

Other EPA officials who have examined the 1985 inter-

pretation have concluded that that interpretation, how-

ever, may have been in error. On December 3, 1987, J.

Winston Porter, assistant administrator for Solid Waste

4 The EPA interpreted the clarification as follows:

The statute is silent as to whether hazardous residues from

burning combined household and non-household, non-hazardous

waste are hazardous waste. These residues would be hazardous

wastes under present EPA regulations if they exhibited a char-

acteristic. The legislative history does not directly address this

question although the Senate report can be read as enunciating

a general policy of non-regulation of those resource recovery

facilities if they carefully scrutinize their incoming wastes.

On the other hand, residues from burning could, in theory,

exhibit a characteristic of hazardous waste even if no hazardous

wastes are burned, for example, if toxic metal become concen-

trated in the ash. Thus, the requirement of scrutiny of incom-

ing wastes could not assure non-hazardousness of the residue.

EPA believes that the principal purpose of section 3001(g)

[sic] was to prevent resource recovery facilities that may in-

advertently burn hazardous waste, despite good faith efforts

to avoid such a result from becoming subject to the Subtitle

C regulations. EPA does not see in this provision an intent to

exempt the regulation of incinerator ash from the burning of

non-hazardous waste in resource recovery facilities if the ash

routinely exhibits a characteristic of hazardous waste.

50 Fed.Reg. 28,725-26 (7/15/85).

27a

and Emergency Response, testified before the Senate Com-

mittee on Environment and Public Works and stated that

[t]he Agency has reexamined that [1985] interpre-

tation and now concludes that it may have been in

error. The Agency believes that the language and

legislative history of Section 3001/1) [42 U.S.C.

$ 6921(i!] were probably intended to exclude these

ash resides from regulation under Subtitle C.

It seems clear that Congress’ interest in Section

300111) 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 exclusion itself ‘which clearly covers

ash). It also appears inconsistent with the expressed

legislative intent that “[a]ll waste management ac-

tivities of such a facility, including the generation,

transportation, treatment, storage, and disposal of

waste shall be covered by the exclusion hi

S.Rep. at 61.

In addition, after stating in the 1985 interpretation

that it did not perceive the RCRA amendments as an

attempt to exempt the regulation of ash residue, the EPA

indicated its confusion on the matter by stating that it

does not believe the HSWA [1984 Hazardous and

Solid Waste Amendments] impose new regulatory

burdens on resource recovery facilities that burn

household and other non-hazardous waste, and the

Agency has no plans to impose additional responsibil-

ities on these facilities. Given the highly beneficial

nature of resource recovery facilities, any future ad-

ditional regulation of their residues would have to

28a

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, 726 (1985).

As the agency primarily responsible for administering

the RCRA, the EPA should be entitled to some deference

in its interpretations regarding the regulation of ash

residue. However, because the EPA’s classification of

ash rests on a questionable reading of the statute and

has been, at best, inconsistent, it should be given less

Weight than it would normally be accorded.’ See Immi-

gration and Naturalization Service v. Cardoza-Fonseca,

ASO U.S. 421, 146 n.30 (1986) (“An agency interpreta-

tion of a relevant provision which conflicts with the

agency's earlier interpretation is entitled to considerably

less deference than a consistently held agency view’).

For this reason, we find that the EPA’s 1985 interpreta-

tion——classifying ash from household and commercial

waste as hazardous if it exhibits characteristics of toxi-

city——does not affect our decision.

Thus, contrary to plaintiffs’ interpretation of RCRA,

we conclude that ash remaining after the incineration of

household waste and non-hazardous commercial waste is

exempt from regulation if the resource recovery facility

satisfies the criteria of $ 3001 (i).

Defendants insist that the Chicago Northwest Incin-

erator does mect those criteria and have submitted affi-

davits to the effect that virtually all the waste received

and burned is household waste, that the very limited

5 Even if the EPA’s 1985 interpretation was entitled to deference

in these proceedings, it would not be binding on this court. “Inter-

pretative rules are statements as to what the administrative officer

thinks the statute or regulation means, whereas legislative rules

have effects completely independent of the statute.” United Tech-

nologies Corp. v. United States Environmental Avency, 831 F.2d

714, 718 (D.C. Cir. 1987) (citations omitted) (emphasis in original).

29a

commercial and industrial waste processed does not con-

tain hazardous wastes, that the facility does not accept

hazardous wastes and that appropriate procedures are in

place to assure that hazardous wastes are not received at

or burned in the facility. Plaintiffs dispute those conclu-

sions but they can, for now, point to little other than the

toxicity tests to support their disagreement. Until now

the focus of this lawsuit has been the statutory interpre-

tation issue. Plaintiffs have lost on that issue. They are

not foreclosed, however, from conducting reasonable dis-

covery to test the defendants’ affidavit assertions. Rule

56(f) so permits. Until they have had an opportunity to

do so, we cannot conclude that defendants, beyond reason-

able dispute, have complied with the conditions needed to

exempt resource recovery facilities from hazardous waste

regulation when burning household and commercial waste.

Although defendants maintain that the incinerator does

not accept hazardous wastes, and that they have estab-

lished sufficient notification and inspection procedures to

prevent this, these issues must be regarded as disputed

issues of material fact that preclude the award of sum-

mary judgment.

CONCLUSION

For the foregoing reasons, both plaintiffs’ and defend-

ants’ cross-motions for summary judgment are denied;

plaintiffs are granted leave for additional discovery.

/s/ James B. Moran

JAMES B. MORAN

Judge

United States District Court

November 29, 1989.

30a

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Case Number: &8& C 769

ENVIRONMENTAL DEFENSE FUND, INC., et al.

CITY OF CHGO et al.

JUDGMENT IN A CIVIL CASE

| Docketed Aug. 21, 1990]

| Jury Verdict. This action came before the Court for

a trial by jury. The issues have been tried and the

jury has rendered its verdict.

ix} Decision by Court. This action came to trial or hear-

ing before the Court. The issues have been tried or

heard and a decision has been rendered.

[TIS ORDERED AND ADJUDGED

That based upon the Memorandum and Order of No-

vember 27, 1989, the stipulation of the parties and de-

fendants’ renewed motion for summary judgment, the

renewed motion for summary Judgment is granted, with-

out prejudice to plaintiffs’ right to appeal the final judg-

ment entered herein.

Date: August 20, 1990

H. STUART CUNNINGHAM

Clerk

s/ Willie A. Haynes

WILLIE A. HAYNES

(By) Deputy Clerk

3la

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 88 C 0769

Judge James B. Moran

ENVIRONMENTAL DEFENSE FUND, INC.

and CITIZENS FOR A BETTER ENVIRONMENT,

Plaintiffs,

CIT¥ OF CHICAGO, et al.,

Defendants.

STIPULATION OF PLAINTIFFS ENVIRONMENTAL

DEFENSE FUND AND CITIZENS FOR A BETTER

KNVIRONMENT AND DEFENDANTS

CITY OF CHICAGO ET AL.

WITH REGARD TO ENTRY OF SUMMARY

JUDGMENT IN FAVOR OF DEFENDANTS

1. On November 27, 1989, this Court ruled herein

that, as a matter of law, ash generated by the Northwest

Waste-to-Energy Facility (‘Facility’) owned by defend-

ant City of Chicago is exempt from regulation as a haz-

ardous waste under Subtitle C of the Resource Conserva-

tion and Recovery Act (“RCRA”) if defendants meet

the two statutory conditions set forth in section 3001 (i)

of RCRA. Memorandum Opinion and Order of November

27, 1989. Those conditions pertain to the existence of

contracts or other appropriate procedures to assure that

the Facility does not receive or process hazardous wastes,

and to non-acceptance of hazardous wastes by the Facil-

ity. The Court directed the parties to engage in discovery

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with regard to whether the Facility meets these two

statutory conditions.

2. Subsequent to issuance of the Court’s Memorandum

and Order, discovery has been completed.

3. Defendants stipulate that, within 60 days of the

entry of this Stipulation they will implement the changes

specified in Attachment A to this Stipulation.

4. Contingent upon defendants’ performance of the

condition stated in paragraph 3 of this Stipulation, plain-

tiffs hereby stipulate that they will not contest, challenge,

or otherwise pursue in this litigation:

(a) the adequacy of the Facility’s current proce-

dures for excluding hazardous wastes;

(b) whether the Facility currently accepts hazard-

ous wastes for processing;

for excluding hazardous wastes;

(d) whether the Facility previously accepted haz-

ardous wastes for processing.

5. Contingent upon defendants’ performance of the

conditions stated in paragraph 3 of this stipulation, plain-

tiffs further stipulate that they will not oppose a renewed

motion by defendants for entry of summary judgment in

favor of defendants. In so stipulating, plaintiffs ex-

pressly reserve their right to appeal the final judgment

insofar as the judgment rests upon the rulings set forth

in the Court’s Order and Memorandum of November 27,

1989.

33a

Respectfully submitted,

/s/ Karen Florini /s/ Kelly R. Welsh

KAREN FLORINI KELLY R. WELSH

Environmental Defense Fund Corporation Counsel

1616 P Street, NW Suite 150 EMILY NICKLIN

Washington, D.C. 20036 Deputy Corporation Counsel

(202) 387-3500 HENRY L. HENDERSON

LESLIE ANN JONES NANCY MARREN

JOHNSON, SCHAFF & JONES Asst. Corporation Counsel

245 & Dearborn 180 N. LaSalle, Suite 704

Chicago, IL 60604 Chicago, IL 60601

(312) 341-9366 (SER) Sae-saee

Counsel For Plaintiffs Counsel For Defendants

Dated: July 2, 1990 June 27, 1990

34a

ATTACHMENT A

To the Acceptable Waste Certification form used by the

City of Chicago at the Northwest Waste-to-Energy Facil-

ity, the following material underlined shall be added to

the form, and material bracketed shall be deleted as

follows:

“Hazardous waste defined as a waste or combination

of wastes, which has been identified by characteristic

or listing as hazardous pursuant to Section 3001 of

the Resource Conservation and Recovery Act of 1976

or pursuant to regulations promulgated by the IIli-

nois Pollution Control Board, [and which poses a

threat to health and safety].

“Oil, cesspool or other human wastes... and small

quantity generator wastes as defined at 40 C.F.R.

sec. 260.10.”

35a

CITY OF CHICAGO

DEPARTMENT OF STREETS AND SANITATION

ACCEPTABLE WASTE CERTIFICATION

DATE MONTH DAY YEAR

I understand that the Northwest Waste-to-Enerey Facil-

ity accepts only household waste and non-hazardovs and

otherwise acceptable commercial and Industrial waste,

and that under no circumstances will the Northwest-

Waste-to-Energy Facility accept any of the following un-

acceptable waste:

Hazardous waste, defined as a waste or combination

of wastes which has been identified, by characteristic

or listing, as hazardous pursuant to Section 3001 of

the Resource Conservation and Recovery Act of 1976

or pursuant to regulations promulgated by the TIIli-

nois Pollution Control Board.

Any waste which because of its nature or bulk will

adversely affect operation of the facility .

Oil, cesspool or other human wastes, human and

animal remains, hospital or medical waste, wire and

cable, tree logs and wood greater than twelve inches

in diameter, liquid waste, non-burnable construction

material and or demolition debris, asbestos and as-

bestos products, explosives including ammunition and

fire arms, chemicals including any empty containers

thereof, such as cleaning fluid, flammables, petroleum

products including drained oils, paints, acids, caus-

tics, pesticides, insecticides, poisons, drugs, and small

quantity generator wastes as defined. in the resource

conservation and recovery Act (RCRA) at 40 C.F.R.

section 260.10.

I hereby certify that the waste delivered in this vehicle

contains no unacceptable waste, as defined above. I un-

derstand that should the operators of the Northwest

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Waste-to-Energy Facility discover unacceptable waste in

this vehicle, that it will not be disposed of at the North-

west Waste-to-Energy Facility and must be returned to

the owner.

DRIVER ———_———_—_ TIME STAMP

VEHICLE LICENSE NO, ———

WASTE AUTHORIZATION FORM #

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.