Amicus Curiae Brief — City of Chicago v. Environmental Defense Fund

Suprems Cour , US |

>) sh & D

No. 91-1328

IN THE

Supreme Court of the Wuited States

OCTOBER TERM, 1991

CITY OF CHICAGO, et al.,

y Petitioners,

ENVIRON MENTAL DEFENSE FUND, ef al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF OF THE

NATIONAL LEAGUE OF CITIES AND

NATIONAL ASSOCIATION OF COUNTIES

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

DAVID R. BERZ *

DAVID B. HIRD

FRANK PANOPOULOS

WEIL, GOTSHAL & MANGES

1615 L Street, N.W.

Washington, D.C. 20036

(202) 682-7000

* Counsel of Record

for the Amici Curiae

WILSON - Eres 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 other-

wise managing hazardous wastes,” exempts from hazard-

ous waste regulation the ash residue from the burning of

municipal solid waste at such a facility.

(i)

ii

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 De-

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

TABLE OF CONTENTS

INTEREST OF THE AMICI CURIAE ........................

SUMMARY OF ARGUMENT .....0000022ooeeeeee eee

REASONS FOR GRANTING THE PETITION FOR

OM gle s.r

I.

Il.

THE SEVENTH CIRCUIT’S HOLDING WILL

EXACERBATE THE CURRENT SHORTAGE

OF LANDFILL SPACE, MAKE UNCERTAIN

THE ECONOMIC VIABILITY OF RESOURCE

RECOVERY FACILITIES, AND IMPOSE SIG-

NIFICANT COSTS ON LOCAL GOVERN-

hs taihdas i hsnicdinseniiinbminiscinnpiinctninaaanes

A. Resource recovery is an important aspect of

RR CI cnc cehccnceenssccencencsnanee

B. Classifying MSW ash as a Subtitle C waste

will create a _ disincentive to resource

C. Requiring treatment of MSW ash as a haz-

ardous waste will place unnecessary financial

burdens on cities and counties .................

THE SEVENTH CIRCUIT’S DECISION

FRUSTRATES CONGRESS’ GOAL OF EN-

COURAGING RESOURCE RECOVERY ..........

A. The congressional scheme regulating MSW

resource recovery is separate from the regu-

lation of hazardous wastes under Subtitle C

Teen ne nn ne cehimenmcens

B. The household waste exclusion expressly ex-

empts all aspects of MSW management from

RCRA’s hazardous waste regulatory pro-

a

a aad acisicetcnerrescancincwenceuhandeuceteecha

os hstacimphalenpmensdaanniainenetalade

11

11

13

19

la

iv

TABLE OF AUTHORITIES

CASES: Page

Environmental Defense Fund, Inc. v. Wheelabrator

Technologies, Inc., 931 F.2d 211 (2d Cir. 1991),

aff’g 725 F. Supp. 758 (S.D.N.Y. 1989), cert.

denied, 112 S. Ct. 458 (1991) ........................-----2---- 4,17

Garcia v. San Antonio Metropolitan Transit Auth.,

Cr re ei aa ictcstenternnettrcemnisennicens 2

Massachusetts Mutual Life Ins. Co. v. United

States, 288 U.S. 269 (1988) ...................----.....------ 17

NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) .. 17

National League of Cities v. Usery, 426 U.S. 833

DI Ui cashier eincihicthasncssissnniindsaenndiaddliaillensckanetiaen 2

Young v. Community Nutrition Institute, 476 U. Ss.

lac iniciticlaciieciihlaainsiaibiiaitleninblemeesinees 17

Zuber v. Allen, 396 U.S. 168 (1964) ........................ 17

STATUTES:

Resource Conservation and Recovery Act, 42

ee I ici nncreeisnnennnicnanecnnmmnsaneteninen 11

Oe ee a escteceresenicasccceewssine 12

nc aleatenntidnnaneninaiibinn 12

| REE ae EEE 18

EIR REE SOOT we eT 12

al cectiacentanennionaee passim

ELAS ne ae Same 6

casinos inanenhinniaitaninngenn 6

IED CUD occ cc ccvceestinsennnamensicnnascen 12

i aeannaiinoceieh 12

I clenabinsicininn 12

Hazardous and Solid Waste Amendments of 1984,

Pub. L. No. 98-616, 98 Stat. 3221 _.........-0............ 15

Section 228, 98 Stat. 3252 _.................ee eee... 15

Solid Waste Disposal Act Amendments of 1980,

Pub. L. No. 96-482, § 32, 94 Stat. 2834 ............... 13

Pub. L. No. 94-580, 90 Stat. 2795 (1976) ................ 11

REGULATIONS: ;

i Eg ree la

45 Fed. Reg. 33,084 (May 19, 1980) -.....--...2.--....-... 18, la

v

TABLE OF AUTHORITIES—Continued

Page

45 Fed. Reg. 33,088-89 (May 19, 1980) -_............00..... 15

45 Fed. Reg. 33,097 (May 19, 1980) ................... 14

45 Fed. Reg. 33,099 (May 19, 1980) ....0000002..0. ee. 14

45 Fed. Reg. 33,120 (May 19, 1980) 0... 13, la

56 Fed. Reg. 50,978 (Oct. 9,1991) 000... 4

56 Fed. Reg. 50,988 (Oct. 9, 1991) 20000 .. 4

56 Fed. Reg. 50,992 (Oct. 9, 1991) -........0000000....-..---- 5

RULE:

i 2

LEGISLATIVE HISTORY:

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

(1984), reprinted in 1984 U.S.C.C.A.N. 5576...... 16

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

reprinted in 1976 U.S.C.C.A.N. 6238 2.000. 12

S. Rep. No. 284, 98th Cong., Ist Sess. (1983) ............ 16, 18

S. Rep. No. 988, 94th Cong., 2d Sess. (1976) ~........... 11

122 Cong. Rec. H1147 (Sept. 27, 1976) —........0.00000.. 13

122 Cong. Rec. H1153 (Sept. 27, 1976) _.........000000.... 13

Regulation of Municipal Solid Waste Incinerators:

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

Transportation and Hazardous Materials of the

House Comm. on Energy and Commerce, 101st

CAaMa., TOR TIRUR. CRD nncencceccnsacic cen ncnsccsassececnscessess 17

MISCELLANEOUS:

George Judson, Anguished Plea from Bridgeport

for Fiscal Relief, N.Y. Times, June 8, 1991, at 1.. 10

Jonathan V.L. Kiser, Municipal Waste Combustion

in the United States: An Overview, Waste Age,

Sn I ns 6

Letter from Lee Thomas, Administrator, EPA, to

Rep. James Florio (May 17, 1988) ......... SE 17

Martin V. Melosi, Garbage in the Cities (1981)...... 5

National League of Cities, City Fiscal Conditions

OU A i a a i 10

National Solid Wastes Management Association,

Landfill Capacity in the Year 2000 (1989) .......... 5

vi

TABLE OF AUTHORITIES—Coatinued

Page

National Solid Wastes Management Association,

1990 Landfill Tipping Fee Survey (1991) ............ 5, 7

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

agement and the Environment, the Mounting

Garbage and Trash Crisis (1987) .................000.-- 5, 6,8

The 1991 Municipal Waste Combustion Guide,

Waste Age, Nov. 1991, at 27 ..............e cece eee 9

U.S. Department of Commerce, City Government

NE ERR EC NCR ll

- U.S. Department of Commerce, Statistical Abstract

OF Oe ee ME BU wvcncesntectacnncearnirostetreernsines 10

U.S. Environmental Protection Agency, EPA/530-

SW-88011A, Report to Congress, Solid Waste

Disposal in the United States, Executive Sum-

ae eee ee 4

IN THE

Supreme Comet of the United States

OCTOBER TERM, 1991

No. 91-1328

CITY OF CHICAGO, et al.,

Petitioners,

Vv.

ENVIRONMENTAL DEFENSE FUND, et al.,

Respondents.

On Petition for a Wrii of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF OF THE

NATIONAL LEAGUE OF CITIES AND

NATIONAL ASSOCIATION OF COUNTIES

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICI CURIAE

Amici curiae are organizations whose members include

state, county and municipal governments and officials

throughout the United States. The National League of

Cities (“NLC”) is a not-for-profit corporation organized

in 1933 to assist municipalities in perfor: xing their func-

tions. Almost 15,000 municipalities are members of and

participate in the activities of the NLC. The National

2

Association of Counties (“NACo”) is the only national

organization representing county government in the

United States. NACo represents over 1900 counties, and

through them approximately 90% of the United States

population. The members of NLC and NACo have a com-

pelling interest in the legal issues pertaining to the in-

cineration of municipal solid waste (“MSW”) and the

interpretation of the Clarification of Household Waste

Exclusion found in Section 3001(i) of the Resource Con-

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

The Court has recognized in the past that sanitation is

a traditional function of local government and that local

government bears the financial burden of this responsibil-

ity.2 Cities and counties around the country, faced with

diminishing MSW landfill capacity, increasing landfill

tipping fees and great difficulties in siting new landfills,

have invested heavily in resource recovery and combus-

tion systems to manage MSW. Thus, 176 MSW com-

bustors, owned both by local governments and private

companies, now handle 17% of the MSW generated in

the United States. Because each of these facilities, in-

cluding those privately owned, serves the MSW manage-

ment needs of local governments, and because these facil-

ities represent tremendous capital investments by local

governments, amici and their members have a great fi-

nancial stake in the outcome of this litigation. In addi-

tion to their financial interests in the issues presented in

this case, amici have an interest in protecting municipal

decisionmaking on local waste management issues. Be-

cause the Seventh Circuit’s decision below will impose

substantial additional costs on jurisdictions which oper-

1 The parties’ letters of consent have been filed with the Clerk

pursuant to Rule 37.2.

2 See National League of Cities v. Usery, 426 U.S. 833, 851 (1976)

(sanitation is “typical of [the services] performed by state and

local governments in discharging their dual functions of adminis-

tering the public law and furnishing public services”); Garcia v.

San Antonio Metropolitan Transit Auth., 469 U.S. 528, 575 (1985)

(Powell, J., dissenting).

3

ate resource recovery facilities, in many situations mak-

ing further use of the facility economically infeasible,

local autonomy over MSW management is imperilled.

SUMMARY OF ARGUMENT

Below, the Seventh Circuit concluded that the exemp-

tion from the hazardous waste regulatory regime which

Congress extended to resource recovery facilities burning

MSW under Section 3001(i) of the Resource Conserva-

tion and Recovery Act (“RCRA”), 42 U.S.C. § 6921(i),

see App. A, infra, did not include the ash produced from

burning MSW. Not only is this decision inconsistent

with the language of Section 3001(i) and its legislative

history, but the consequence of the decision will defeat the

very purpose for which Congress adopted the exemption.

Starting with the enactment of RCRA in 1976, and

through two sets of amendments in 1980 and 1984, Con-

gress sought to keep the management of MSW separate

and apart from the regulatory regime relating to hazard-

ous waste. Congress also sought to encourage local gov-

ernments to burn MSW at resource recovery facilities to

promote the generation of energy and to save scarce land-

fili space. To that end, Congress in 1984 adopted Section

3001(i), which expressly exempts all operations of MSW

resource recovery facilities from RCRA’s hazardous waste

regulatory program.

If the Seventh Circuit’s decision is not reversed, there

will be a substantial disincentive for local governments

to use resource recovery facilities to handle their MSW.

From an economic standpoint, it is simply cheaper for

many local governments to dispose of untreated MSW

in a sanitary landfill than to burn the same material in

a resource recovery facility and dispose of the ash in a

hazardous waste landfill. If the Seventh Circuit’s deci-

sion stands, local governments will be obliged by economic

considerations to choose landfilling of untreated MSW

over the use of resource recovery facilities, very few new

resource recovery facilities will be built, and the limited

4

space available for landfilling will be more quickly ex-

hausted. Thus, the Seventh Circuit’s interpretation of

Section 3001(i) defeats the statute’s overriding purpose.

Currently, there is a conflict between the Seventh Cir-

cuit’s decision in this case and the decision of the Second

Circuit in Environmental Defense Fund, Inc. v. Wheel-

abrator Technologies, Inc., 931 F.2d 211 (2d Cir. 1991),

aff'g 725 F. Supp. 758 (S.D.N.Y. 1989), cert. denied, 112

S. Ct. 453 (1991), which held that the ash from a re-

source recovery facility is covered by the exemption in

Section 3001(i). Because of the conflict, local govern-

ments outside of the Second and Seventh Circuits are

faced with uncertainty about the legal requirements

which relate to their handling of the ash. The uncer-

tainty interferes with their ability to formulate plans

for handling MSW in a lawful, but cost-effective manner,

discourages investments in new resource recovery facili-

ties, and exposes cities and counties to lawsuits.

REASONS FOR GRANTING THE PETITION

FOR A WRIT OF CERTIORARI

I. THE SEVENTH CIRCUIT’S HOLDING WILL EX-

ACERBATE THE CURRENT SHORTAGE OF LAND-

FILL SPACE, MAKE UNCERTAIN THE ECONOMIC

VIABILITY OF RESOURCE RECOVERY FACILI-

TIES, AND IMPOSE SIGNIFICANT COSTS ON

LOCAL GOVERNMENTS

A. Resource Recovery Is An Important Aspect of MSW

Management

This country faces a significant landfill crisis. While

there were approximately 10,000 operating MSW landfills

in 1970, only approximately 6,500 remained in operation

by 1988.* Many of these will be forced to close as a con-

356 Fed. Reg. 50,978, 50,988 (Oct. 9, 1991); U.S. Environmental

Protection Agency, EPA/530-SW-88-011A, Report to Congress, Solid

Waste Disposal in the United States, Executive Summary at 1

(Oct. 1988).

5

sequence of regulations promulgated by the Environ-

mental Protection Agency (“EPA”) in 1991.4 As rapidly

as landfill capacity has decreased, tipping fees at re-

maining MSW landfills have increased. Between 1988

and 1990 average tipping fees increased 17% nation-

ally.» Moreover, the landfill crisis is compounded by

severe regional capacity shortages, prompting many cities

and counties to ship MSW to distant jurisdictions or

across state lines and thereby adding significant trans-

portation costs as well as disposal surcharges. For in-

stance, a 1989 study reported that 11 New Jersey coun-

ties shipped their MSW out of state and that over half the

state’s refuse was sent to other regions of the country.’

Incineration has played a significant role in MSW dis-

posal. In 1938, approximately 600 to 700 cities and towns

burned their garbage and rubbish.’ However, use of in-

cineration waned as landfilling became more economical,

and by 1974 only 160 incinerators and resource recovery

facilities were in operation.* Today, resource recovery

facilities and incinerators have again become a vital part

of the MSW management system. They are increasingly

important and popular due to the shortage and expense

of landfill space. Incineration reduces pressure on land-

fill capacity by reducing the volume of MSW by up to

90% and the mass by approximately 75%.* Jurisdictions

which burn portions of their MSW streams and then

4 See 56 Fed. Reg. at 50,992.

5 National Solid Wastes Management Association, 1990 Landfill

Tipping Fee Survey 6 (1991). In the midwest and the mid-Atlantic

regions of the country, fees increased by 31% and 20%, respectively.

6 Nationa! Solid Wastes Management Association, Landfill Capac-

ity in the Year 2000, at 5 (1989).

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

8 Id.

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

Environment, the Mounting Garbage and Trash Crisis 117 (1987).

6

landfill the remaining ash reduce landfill tipping fees

and transportation costs significantly. In 1991, 176 re-

source recovery facilities and incinerators burned more

than 31 million tons of MSW, or 17% of the nation’s

total MSW stream.” If the 68 projects currently in

planning and construction stages are completed, capacity

will be increased to 53 million tons per year, or 24%

of the estimated total volume of MSW that will be gen-

erated in the year 2000."

In addition to saving landfill space, resource recovery

facilities provide substantial other environmental and

economic benefits. One ton of MSW burned in a resource

recovery plant provides enough energy to light one thou-

sand 100-watt light bulbs for one hour, power 500 hair

dryers for one hour, or furnish electricity to an ordi-

nary apartment for one month.” A portion of the energy

generated by resource recovery facilities is used to oper-

ate the plants themselves, making the facilities self-suffi-

cient, and the remainder is sold and the proceeds applied

to the facility’s operating expenses, further reducing the

cost of MSW disposal to local government.

8. Classifying MSW Ash as a Subtitle C Waste Will

Create a Disincentive to Resource Recovery

If MSW ash is reclassified as a hazardous waste, re-

source recovery facility operators will be required to dis-

pose of that ash only at landfills which have obtained

applicable state or federal treatment, storage and dis-

posal permits under the strict requirements of Subtitle

C of RCRA. 42 U.S.C. §§ 6924, 6925. As a consequence

of the stricter environmental control requirements and

the added risk of liability inherent in handling hazardous

10 Jonathan V.L. Kiser, Municipal Waste Combustion in the United

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

11 Jd,

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

7

wastes, the cost of disposing of MSW ash in a hazardous

waste landfill will be substantially greater than the cost of

putting the ash in MSW landfills or in ash monofills. For

example, Hennepin County, Minnesota, estimates the cost

of disposing MSW ash as a hazardous waste to be $150

to $200 per ton. This figure is three to four times the

$50 per ton which the county pays for ash disposal in a

MSW landfill or monofill. Moreover, the cost is approxi-

mately six to seven times the national average for tipping

fees at MSW landfills, which is $26.56 per ton. Fur-

thermore, if all the MSW ash currently produced is di-

verted to hazardous waste landfills, hazardous waste

landfill charges will likely increase significantly due to

the added demand for space. Thus, the nation’s limited

hazardous waste landfill capacity would be taxed sub-

stantially and shortages would result.

By increasing the cost of ash disposal so dramatically,

the Seventh Circuit’s ruling below will create a signifi-

cant economic disincentive to resource recovery. For in-

stance, the City of Akron, Ohio, estimates the following:

the cost of landfilling one ton of MSW is $50; the cost

of incincerating one ton of MSW and landfilling the ash

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

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

waste landfill is $92. Thus, for Akron, it would cost

almost twice as much to burn a ton of MSW and take the

residue to a hazardous waste landfill than to simply dis-

pose of the untreated MSW in a sanitary landfill. Simi-

larly, Montgomery County, Ohio, estimates that incinerat-

ing MSW and disposing of the ash as a hazardous waste

would be approximately three times as costly as disposing

uncombusted MSW in a MSW landfill in the first place.

Likewise, New York City, which incinerates over 1

million tons of MSW annually, estimates that its cost per

ton would increase from approximately $100 to over $300

13 National Solid Wastes Management Association, 1990 Landfill

Tipping Fee Survey 6 (1991).

8

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

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

lion per year. By way of comparison, the cost of divert-

ing the MSW waste stream directly to a MSW landfill

without any incineration is only $30 per ton. For Mar-

ion County, Oregon, landfilling MSW ash as a hazardous

waste would almost double the cost of MSW disposal,

raising it from the current cost of $46.95 per ton to

$80.10 per ton. This can be compared with costs of $36

per ton to send MSW directly to a landfill without incin-

erating it.

As the examples above show, requiring that MSW ash

be treated as a hazardous waste will make the inciner-

ation process economically infeasible in many communi-

ties and may result in disposal of all the MSW generated

by these communities in sanitary landfills. Consequently,

MSW landfill capacity will begin to diminish at an even

faster rate and tipping fees will increase accordingly.

Thus, pure economics would force many cities and coun-

ties to choose landfilling of MSW over resource recovery,

if the ash residue had to be handled as a hazardous waste.

As a result of the economic disincentives created by

the Seventh Circuit’s decision, resource recovery will

cease to be a viable option for many communities. More-

over, facilities in the planning or construction stage may

be canceled and the future viability of existing facilities

will be jeopardized. The 57 plants currently in the plan-

ning or construction stages represent enormous develop-

ment costs * to both local governments and private own-

14 This figure, however, is far below market rates because New

York owns and operates its own landfill. Furthermore, the $30 per

ton figure does not include the cost of new landfill construction to

compensate for lost capacity.

15 Jn 1985, the cost of construction of a resource recovery facility

capable of processing 1000 tons of MSW per day was $80 million.

Neal & Schubel, supra note 9, at 117.

9

ers throughout the country who have relied on the

RCRA’s statutory goal of encouraging resource recovery

and the explicit exemption of MSW resource recovery fa-

cilities from Subtitle C regulation provided by Congress

in Section 3001(i).'° Importantly, the Seventh Circuit’s

decision also results in geographical inequities by making

MSW management far more expensive for cities and

counties in Illinois, Indiana, and Wisconsin than for local

governments located in other circuits. To resolve this

uncertainty and inequity, the Court should grant the peti-

tion for certiorari to determine a national rule which

cities and counties can rely upon in making MSW plan-

ning decisions.

C. Requiring Treatment of MSW Ash as a Hazardous

Waste Will Place Unnecessary Financial Burdens

on Cities and Counties

The financial burden of providing sanitation and solid

waste disposal services has been increasing substantially

for local governments, as has the cost of providing other

essential services. At the same time, the federal govern-

ment has drastically decreased its role in providing finan-

cial support to local governments. For example, local

governments received 9% of their revenues from the fed-

16 The jurisdictions with publicly owned resource recovery facili-

ties in the advance planning or construction stages include: Lisbon,

Connecticut ; Delaware Solid Waste Authority plant, near Millsburg,

Delaware; Lee County, Florida; Mid-Maine Waste AC, Auburn,

Maine; Montgomery County, Maryland; Oakland County, Michigan;

Dakota County, Minnesota; St. Louis, Missouri; Mercer County,

New Jersey; Monmouth County, New Jersey; Morris County, New

Jersey; Union County, New Jersey; Mecklenburg County, North

Carolina; Montgomery County, Pennsylvania; Kingston, Rhode

Island; Johnston, Rhode Island; and Nashville, Tennessee. The

1991 Municipal Waste Combustion Guide, Waste Age, Nov. 1991, at

27. Numerous other plants, planned and financed by private com-

panies, will serve other local governments, which will pay tipping

fees for MSW disposal at these facilities.

10

eral government in 1980, but only 4% in 1988." Ad-

justed for inflation, the decline is even more notable.

A study conducted by the National League of Cities in

the Spring of 1991 illustrates the financial plight of the

cities. Almost 61% of the cities surveyed reported that

1991 general fund expenditures were expected to exceed

revenues, and over 26% said that expenditures would ex-

ceed revenues by more than 5%.'* The bankruptcy of the

City of Bridgeport, Connecticut, is but one example of

the desperate financial circumstances facing many cities.’

Further, 66.3% of the responding cities reported that

the cost of solid waste disposal was one factor beyond

their control contributing to fiscal difficulties.2° Over

10% of cities reported that landfill, refuse, solid waste

and recycling expenses comprise the single factor that

most adversely affected city expenditures.”

The Seventh Circuit’s ruling will significantly increase

MSW management costs by compelling local governments

to pay for disposal of MSW ash in expensive hazardous

waste landfills or to pay, either directly or indirectly

through higher tipping fees, for increased MSW landfill

space. If obliged to spend more for solid waste dis-

posal, local governments will be even more disadvantaged

in furnishing other needed services to their constituents.

17U.S. Department of Commerce, Statistical Abstract of the

United States 1991, at 295.

18 National League of Cities, City Fiscal Conditions in 1991, at

iii (1991).

19 See George Judson, Anguished Plea from Bridgeport for Fiscal

Relief, N.Y. Times, June 8, 1991, at 1. It is interesting to note that

Bridgeport invested substantially in a resource recovery facility

which went on line in 1988.

20 National League of Cities, supra note 18, at 31. Solid waste

disposal costs ranked higher than changes in the amount of state

aid to cities (59.2%) and employee pension costs (58.5%).

21 Jd. at 7.

11

Like solid waste disposal costs, necessary service costs

have been rising faster than have revenues. For example,

while city government revenues rose by 9.5% between

1988 and 1990, solid waste mangament costs rose by

12.5%. Over the same period, health costs rose by

15.3%, police protection costs by 11.1%, corrections costs

by 26.9%, and judicial and legal administration costs by

17.3% .*

Il. THE SEVENTH CIRCUIT’S DECISION FRUS-

TRATES CONGRESS’ GOAL OF ENCOURAGING

RESOURCE RECOVERY

Congress consistently has sought to promote two ob-

jectives relating to the handling of MSW: (1) keeping

the management of MSW separate and apart from

RCRA’s hazardous waste management regime, and (2)

facilitating resource recovery as an option for managing

MSW in order to save scarce landfill space and promote

energy recovery. As described below, these two objectives

have been articulated by Congress in its enactment of

RCRA in 1976, as well as in subsequent amendments to

RCRA in 1980 and 1984.

A. The Congressional Scheme Regulating MSW Re-

source Recovery Is Separate from the Regulation of

Hazardous Wastes Under Subtitle C of RCRA

In enacting RCRA in 1976,* Congress unambiguously

separated the handling of MSW from the scheme for

managing hazardous wastes established under Subtitle C

of RCRA. See S. Rep. No. 988, 94th Cong., 2d Sess. 15-

16 (1976) (stating the hazardous waste permit program

is “not a general regulatory program of municipal or

22U.S. Department of Commerce, City Government Finances 1989-

90, at1 (summary).

23 Id.

24 Pub. L. No. 94-580, 90 Stat. 2795 (1976) (codified as amended

at 42 U.S.C. §§ 6901-6992k).

12

private sanitary landfill operations. . . . [and] is not to

be used .. . to extend control over general municipal

wastes”) (emphasis added).

Expressing concern over the increasing scarcity of

land available to metropolitan areas due to landfilling of

MSW, Congress further concluded that resource recovery

facilities should be promoted as an alternative to land-

filling and as an independent source of energy. H.R. Rep.

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

1976 U.S.C.C.A.N. 6238, 6240. See also Section 1002 (b)

(8) and (d) of RCRA, 42 U.S.C. § 6901(b) (8) and

(d). To facilitate the development of MSW resource re-

covery, Congress authorized technical as well as research

and development aid to localities developing resource re-

covery facilities under Subtitles B and D of RCRA. See

Sections 2003 and 4008 of RCRA, 42 U.S.C. §§ 6913,

6948. Also, Congress authorized EPA to promulgate

rules and guidelines to assist states in implementing re-

source recovery plans, and to specifically consider appro-

priate types of resource recovery facilities for a variety

of state and municipal situations. See Section 4002(c)

(10) of RCRA, 42 U.S.C. § 6942 (c) (10).

Congress’ intention to promote the incineration of

MSW to produce energy as a primary means of resource

recovery is reflected throughout the legislative history of

RCRA’s enactment. For example, House Report 1491 ex-

plains that Section 4003 of RCRA, 42 U.S.C. § 6943, al-

lows state and local governments the flexibility needed to

develop alternative disposal systems by “requir[ing] that

the discarded materials be utilized by a resource recovery

facility for the recovery of energy . . . or that such dis-

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

mentally sound method of disposal, including incineration

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

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

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

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

and comparing the energy yields from incineration of MSW and

heaeeneeceiemeaseimmaaaaen naan

13

Four years after the passage of RCRA, Congress reaf-

firmed its objective of promoting the development of re-

source recovery facilities by enacting Section 32 of the

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

No. 96-482, 94 Stat. 2334 (hereinafter “1980 RCRA

Amendments”). Section 32 of the 1980 RCRA Amend-

ments, codified at various parts of Subtitle D of RCRA,

amended the statute in order to improve and augment

federal programs for energy and resource recovery as-

sistance to states and municipalities. Section 32 author-

ized the EPA to provide grants to states and municipali-

ties in order to facilitate waste-to-energy feasibility and

developmental planning, and to provide technical assist-

ance in order to remove impediments to the development

of energy recovery.

Thus, the 1976 and 1980 statutes demonstrate Con-

gress’ intent to regulate MSW separately from hazard-

ous wastes. These statutes and their legislative history

also show that a primary objective of Congress was to

promote the development of resource recovery facilities,

including facilities which recovered energy from the

incineration of MSW.

B. The Household Waste Exclusion Expressly Ex-

empts All Aspects of MSW Management from

RCRA’s Hazardous Waste Regulatory Program

Consistent with the resource recovery policies and MSW

regulatory scheme embodied by Congress in RCRA, EPA

promulgated the household waste exclusion rule in 1980.

See 45 Fed. Reg. 33,084, 33,120 (May 19, 1980), and

see App. A, infra. Responding in the regulation’s pre-

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

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

Cong. Rec. H1147, H1153 (Sept. 27, 1976) (statement of Rep.

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

recapturing the discarding of “millions of tons of paper, valuable

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

burned for their energy value.’’) (emphasis added).

14

amble to comments suggesting that portions of household

wastes should be regulated as hazardous wastes because

they might include solvents, insecticides, and paints pur-

chased at grocery stores, EPA pointed to Congress’ in-

tent to exclude the entire household waste stream from

regulation as a hazardous waste. Although EPA ac-

knowledged that hazardous constituents may be included

in household wastes, the agency nonetheless concluded

that Congress’ intent was best served by excluding the

entire waste stream from Subtitle C regulations:

The Senate language makes it 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 hazardous

waste.

45 Fed. Reg. at 33,099 (emphasis added). Hence, as a

category of waste household waste, including ash residue

remaining after treatment, was explicitly exempted

from regulation as a hazardous waste. The rationale

for this exemption was not based on the content of

household waste, but rather on the express congres-

sional policy of exempting the entire household waste

stream from the hazardous waste regulations regardless

of whether it could be classified as a hazardous waste on

account of the characteristics of its constituents. See id.

at 33,097.

EPA knew when it promulgated the regulation that a

small amount of hazardous waste would be included in

the household waste stream. However, neither Congress

nor EPA intended to omit any particular phase in the

management of the MSW waste stream from the house-

hold waste exclusion. In particular, by describing incin-

erator ash as the residue left after “treatment” of the

waste stream, and including the ash within the discussion

of the waste stream’s overall management, EPA unambig-

Wciaasceneenaentatttcanaenetiaceaimeeinmammnaainl

15

uously exempted the ash from regulation as a hazardous

waste. Thus, EPA excluded the entire household waste

stream “in all phases of its management” from RCRA’s

hazardous waste regulatory regime, regardless whether

the treatment residue—ash—might meet the legal defini-

tion of “hazardous waste.”

Discussing the hazardous waste regulatory scheme in

the preamble to the regulation, EPA acknowledged that

the system was imperfect.

This system may not work perfectly for every

waste however. /t may overrequlate in some instances

and underregulate in others. This is an unavoidable

consequence of attempting to develop a national haz-

ardous waste management program which has to reg-

ulate thousands of wastes....

Id. at 33,088-89 (emphasis added). Viewed in this con-

text, the fact that MSW ash was not regulated as a haz-

ardous waste is not surprising. EPA, in accordance with

the policy choice made by Congress sim>'y struck a bal-

ance in favor of underregulation in order to promote the

important social values of providing local governments

with flexibility in handling their MSW and of encourag-

ing resource recovery.

When Congress enacted the Hazardous and Solid Waste

Amendments of 1984, Pub. L. No. 98-616, 98 Stat. 3221

(hereinafter “1984 RCRA Amendments’), it took the

unusual step of expressly adopting and clarifying EPA’s

interpretation of legislative intent by enacting the “Clari-

fication of Household Waste Exclusion.” ** The provision

codified in the statute the household waste exclusion as

promulgated by EPA. It also clarified that the exclusion

removed the entire household waste stream from the Sub-

title C hazardous waste regulatory regime, and that it

26 See Section 223 of the 1984 RCRA Amendments, 98 Stat. 3252

(codified as amended at §$ 3001(i) of RCRA, 42 U.S.C. § 6921(i)).

16

applied to resource recovery facilities which burned and

derived energy from MSW.

The intent behind the clarification is stated in the

Senate report accompanying the Senate amendments to

the original House bill, and agreed to by the conference

committee.*7 Recognizing that it was important to en-

courage commercially viable resource recovery facilities

and to remove impediments that may hinder their devel-

opment and operation, the Senate report indicated new

Section 3001(i) clarified Congress’ original intent to in-

clude within the household waste exclusion all the activi-

ties of a resource recovery facility which recovered energy

from the mass burning of household waste and non-haz-

ardous waste from other sources, as long as the facility

took precautions against accepting hazardous waste from

commercial sources.

All waste management activities of such a facility,

including the generation, transportation, treatment,

storage and disposal of waste shall be covered by the

exclusion, if the limitations in paragraphs (1) and

(2) are met.... If such [limitations] are in place,

a resource recovery facility whose activities would

normally be covered by the household waste exclusion

should not be penalized for the occasional, inadvertent

receipt and burning of hazardous material.

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

phasis added).

This unambiguous statement by the Senate that all

MSW waste management activities by a resource recov-

ery facility are covered by the exclusion confirms that

EPA correctly reflected Congress’ intent when it promul-

gated the household waste exclusion rule. This Court has

ruled that an administrative agency’s interpretation of

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

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

17

congressional intent is entitled to great weight, when

Congress is aware of the agency’s interpretation but fails

to revise or repeal the interpretation in subsequent legis-

lation. See Young v. Community Nutrition Institute, 476

U.S. 974, 983 (1986); NLRB v. Bell Aerospace, Co., 416

U.S. 267, 275 (1974); Zuber v. Allen, 396 U.S. 168,

192-3 (1964); Massachusetts Mutual Life Ins. Co. v.

United States, 288 U.S. 269, 273 (1983). Therefore,

EPA’s 1980 household waste exclusion rule, which ex-

pressly covered treatment residue—ash—was confirmed

by the 1984 RCRA Amendments.”

By focusing on whether “management” and “oenera-

tion” are coextensive terms, the Seventh Circuit missed

what is really at issue in interpreting the household

waste exclusion: the congressional intent that this par-

ticular waste stream in all phases of its management,

which includes treatment by incineration and disposal of

the ash residue resulting from such treatment, be excluded

from the regulatory scheme under Subtitle C of RCRA.

Instead of placing the statute within the context of the

underlying regulatory and statutory policies, the Sev-

enth Circuit seized upon the absence of the word “gven-

eration” from the language of Section 3001(i) to support

*8 Both the Seventh Circuit below, 948 F.2d at 350, and the dis-

trict court in Environmental Defense Fund, Inc. v. Wheelabrator

Technologies, Inc., 725 F. Supp. at 768-69, noted that since the 1984

RCRA Amendments, the executive branch has taken inconsistent

positions on the meaning of the household waste exclusion, and there-

fore gave little or no deference to EPA’s “see-sawing” post-1984 in-

terpretations of the statute. EPA’s latest approach to the problem

has been to throw in the towel completely and seek legislative clarifi-

cation of the exclusion. See Letter from Lee Thomas, Administrator,

EPA, to Rep. James Florio (May 17, 1988) ; Regulation of Municipal

Solid Waste Incinerators: Hearings on H.R. 2162 Before the Sub-

comm. on Transportation and Hazardous Materials of the House

Comm. on Energy and Commerce, 101st Cong., Ist Sess. 33 (1989)

(testimony of Sylvia Lowrance, Director EPA’s Office of Solid

Waste).

18

an interpretation which contradicted and defeated the

purpose of the statute.

The Seventh Circuit’s focus on the absence of the word

“generation” in Section 3001(i) is misplaced. First, “gen-

eration” is expressly included within the scope of the

exemption in the Senate report’s discussion of Section

3001(i) which was agreed to by the conference com-

mittee. S. Rep. No. 284, 98th Cong., 1st Sess. 61 (1983).

Second, the absence of the word “generation” in Section

3001 (i) is irrelevant to whether the exemption extends to

MSW ash. In producing ash, a resource recovery facility

is not “generating” a new waste. Rather, it is treating

pre-existing municipal solid waste to produce what EPA

properly described as a “treatment residue” in the

preamble to the 1980 household waste exclusion rule.

Because Section ‘3001(i) expressly includes “treatment”

within the scope of the exemption, the handling of

the ash as a treatment residue also falls within the

exemption.”

The Seventh Circuit’s interpretation strips the statute

of meaning by making the exemption no longer useful

for the purpose it was intended to promote. By creating

an economic disincentive to resource recovery, the Court

of Appeals decision will in effect discourage the building

of new resource recovery facilities which incinerate

MSW as a means of energy recovery, and dissuade local

governments from using existing facilities. The decision

undermines Congress’ intent in enacting the exclusion

clarification, as well as Congress’ underlying objectives

with respect to the handling of MSW throughout the

history of the RCRA legislation.

29 See Section 1004(34) of RCRA, 42 U.S.C. § 6903(34), which de-

fines the term “treatment” when used in connection with a hazard-

ous waste, to mean “any method, technique or process . . . designed

to change the physical, chemical, or biological character or composi-

tion” of the waste.

19

CONCLUSION

For the reasons stated herein and in the Petition for

a Writ of Certiorari, the petition should be granted.

Respectfully submitted,

DAVDD R. BERz *

DAVID B. HIRD

FRANK PANOPOULOS

WEIL, GOTSHAL & MANGES

1615 L Street, N.W.

Washington, D.C. 20036

(202) 682-7000

* Counsel of Record

April 20, 1992 for the Amici Curiae

la

APPENDIX A

1. Section 3001(i) of the Resource Conservation and

Recovery Act, 42 U.S.C. § 6921 (i).

CLARIFICATION OF HOUSEHOLD WASTE

EXCLUSION. A resource recovery facility recover-

ing energy from the mass burning of municipal

solid waste shall net be deemed to be treating, stor-

ing, disposing of, or otherwise managing ‘iazardous

wastes for the purposes of regulation unc -r this sub-

chapter, if—

(1) such facility—

(A) receives and burns only—

(i) household waste (from single and mul-

tiple dwellings, hotels, motels, and other resi-

dential sources) ,

(ii) solid waste from commercial or indus-

trial sources that does not contain hazardous

waste identified or listed under this section, and

(B) does not accept hazardous wastes identi-

fied or listed under this section, and

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

tablished contractual requirements or other appro-

priate notification or inspection procedures to assure

that hazardous wastes are not received at or burned

in such facility.

2. As originally promulgated, 45 Fed. Reg. 33,084,

33,120 (May 19, 1980) (codified as amended at 40 C.F.R.

§ 261.4(b) (1)), the Household Waste Exclusion stated:

(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.g., refuse-derived fuel) or re-

2a

used. “Household waste” means any waste material

(including garbage, trash, and sanitary wastes in

septic tanks) derived from households (including

single and multiple residences, hotels and motels).