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

i

“5

No. 91-1328 Bupreme Court, U.S.

LED

= APR 20 1992

Sigtrrenw Cut of the United States

F THE CLERK

OCTOBER TERM, 1991 | wae § a

THE CITY OF CHICAGO, et al.,

. Petitioner,

ENVIRONMENTAL DEFENSE FUND, et al.,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

BRIEF AMICI CURIAE OF CITY OF AMES, IOWA,

CITY OF COLUMBUS, OHIO, CITY OF HARRISBURG,

PENNSYLVANIA, CITY OF INDIANAPOLIS, INDIANA,

CITY OF TULSA, OKLAHOMA, DAVIS COUNTY SOLID

WASTE MANAGEMENT AND ENERGY RECOVERY

SPECIAL SERVICE DISTRICT, GREATER DETROIT

RESOURCE RECOVERY AUTHORITY, JOINT BOARD

OF OVERSIGHT FOR THE HAMPTON/NASA/USAF

REFUSE-FIRED STEAM GENERATING FACILITY,

METROPOLITAN GOVERNMENT OF NASHVILLE AND

DAVIDSON COUNTY, TENNESSEE, MINNESOTA

RESOURCE RECOVERY ASSOCIATION, MONTGOMERY

COUNTY, OHIO, NATIONAL INSTITUTE OF MUNICIPAL

LAW OFFICERS, NORTHEAST SOLID WASTE

COMMITTEE, RESOURCE AUTHORITY OF SUMNER

COUNTY, TENNESSEE, SOUTHEASTERN PUBLIC

SERVICE AUTHORITY OF VIRGINIA, ST. CROIX

COUNTY, WISCONSIN, AND YORK COUNTY SOLID

WASTE AND REFUSE AUTHORITY

IN SUPPORT OF PETITIONER

Scott M. DUBOoFF *

ANDREAS H. LESKOVSEK

WINSTON & STRAWN

1400 L Street, N.W.

Washington, D.C. 20005-3502

(202) 371-5704

Counsel for Amici Curiae

* Counsel of Record City of Ames, Iowa et al.

(Additional Counsel Listed on Inside Cover)

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

JOHN R. KLAUS

City Attorney

515 Clark Avenue

Ames, Iowa 50010

Counsel for City of Ames, lowa

RONALD J. O’BRIEN

City Attorney

DANIEL W. DRAKE

Assistant City Attorney

90 West Broad Street

Columbus, Ohio 43215

Counsel for City of Columbus,

Ohio

HOWARD J. WEIN

KLETT, LIEBER, SC HORLING

& ROONEY

One Oxford Centre—-40th floor

Pittsburgh, Pennsylvania

15219-6498

Counsel for City of Harrisburg,

Pennsylvania

SHEILA M. O’BRYAN

Assistant Corporation Counsel

1601 City-County Building

Indianapolis, Indiana 46204

Counsel for City of Indianapolis,

Indiana

NEAL E. MCNEILL

City Attorney

PATRICK T. BOULDEN

Assistant City Attorney

City Hall Room 316

200 Civic Center

Tulsa, Oklahoma 74103

Counsel for City of Tulsa,

Oklahoma

L. R. GARDINER

GARDINER & HINTZE

525 East 1st South Street

Salt Lake City, Utah 84102

Counsel for Davis County Solid

Waste Management and

Energy Recovery Special

Service District

JOH? D. PIRICH

HONIGMAN MILLER SCHWARTZ

& COHN

Michigan National Tower—

Suite 1400

Lansing, Michigan 48933

Counsel for Greater Detroit

Resource Recovery Authority

PAUL BURTON

City Attorney

22 Lincoln Street

Hampton, Virginia 23669

Counsel for Joint Board of

Oversight for the Hampton/

NASA/USAF Refuse-Fired

Steam Generating Facility

PATRICIA J. COTTRELL

Director of Law

STEPHEN O. NUNN

Metropolitan Attorney

Metropolitan Courthouse—

Room 204

Nashville, Tennessee 37201

Counsel for the Metropolitan

Government of Nashville and

Davidson County, Tennessee

JANINE L. MIGDEN

HAHN, LOESER & PARKS

431 East Broad Street

Columbus, Ohio 43215

Counsel! for Montgomery County,

Ohio

BENJAMIN L. BROWN

National Institute of Municipal

Law Officers

1000 Connecticut Avenue, N.W.

Suite 900

Washington, D.C. 20036

Counsel for National Institute of

Municipal Law Officers

RUTH ELLEN FITCH

RALPH A. CHILD

PALMER & DODGE

One Beacon Street

Boston, Massachusetts 02108

Counsel for Northeast Solid

Waste Committee

PETER M. HUBER

WILLCOX & SAVAGE, P.C.

1800 Nationsbank Center

One Commercial Place

Norfolk, Virginia 23510-2197

Counsel for Southeastern Public

Service Authority of Virginia

GREGORY A. TIMMERMAN

Corporation Counsel

St. Croix County Courthouse

911 Fourth Street

Hudson, Wisconsin 54016

Counsel for St. Croix County,

Wisconsin

ee ae eS ee ee ee

TABLE OF CONTENTS

Page

RE UF I IID ocsicencenirccncncsnecernnccnnnsnenewesenees i

STATEMENT OF INTEREST OF AMICI ................. 2

REASONS FOR GRANTING THE WRIT .................... 5

BRINE 5 LESSEE EEE Fn OO 18

TABLE OF AUTHORITIES

CASES

Crandon v. United States, 494 U.S. 152 (1990) .... 13

Environmental Defense Fund, Inc., et al. v. The

City of Chicago, et al., 948 F.2d 345 (7th Cir.

RR ee Se Ei Re en 2,14,17

Environmental Defense Fund v. Wheelabrator

Technologies, 931 F.2d 211 (2d Cir. 1991), aff’g

725 F. Supp. 758 (S.D.N.Y. 1989), cert. denied,

SE) Race nee 5, 8,17

Green v. Block Laundry Machine Co., 490 U.S. 504

a tencemttlidabnsineonennions 18

Miles v. Apex Marine Corp., 111 S. Ct. 317

a le 14

Public Interest Research Group of New Jersey,

Inc., et al. v. Powell Duffryn Terminals, Inc.,

913 F.2d 64 (3d Cir. 1990), cert. denied, 111

SE RR Occ ae Ai ee 9

Sutton .. United States, 819 F.2d 1289 (5th Cir.

a cpennsiasbdiidnantadenh 16

STATUTES AND REGULATIONS

i sacibnababnaonaanbonnsets 9

ELE Te EN 3,6

IE |S SET 16

a steaisehdissicmnncsiiioies 2

ee re passim

Ee ee 5

ER ee ee ee ee 8

7,9

ii

TABLE OF AUTHORITIES—Continued

PEE Ne Ce

SE Ng FEE DEC ene een We Ca

Mass. Regs. Code title 310, § 19.119 ......... a did eaccnieei

Mich. Comp. Laws § 299.482 ............22.2.2.2.22--.22---20000

Ohio Rev. Code Ann. § 3734.40 _........0 eee

Pa. Stat. Ann. title 35, § 6018.102 (2) _.....--

Tenn. Stat. Ann. § 68-31-602 (b) .........--2-- eee.

Va. Code Ann. § 10.1-1402 ....2. none eee eee eee ee

., & Ee | fe YO) eee eeeLyeCnnEre

40 C.F.R. § 241.101 (k) -......... ides decontsaniceseukiedn

LEGISLATIVE AND ADMINISTRATIVE

MATERIALS

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

ES ACCS SPE Ss Nb Spee cee

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

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

Regulation of Municipal Solid Waste Incinerators:

Hearing on H.R. 2162 Before the Subcomm.

on Transportation and Hazardous Materials of

the House Comm. on Energy and Commerce,

101st Cong., 1st Sess. (1989) .........................22-2----

45 Fed. Reg. 33084 (May 19, 1980) ..........----.-......

54 Fed. Reg. 52209 (December 20, 1989) ~...............

MISCELLANEOUS

Commonwealth of Massachusetts, Department of

Environmental Protection, Toward a System of

Integrated Solid Waste Management/The Com-

monwealth Master Plan (June 1990) .................

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

Commercial Hazardous Waste Management In-

dustry, Draft Report (September 17, 1991) ........

Kiser, Jonathan V.L., “A Comprehensive Report on

the Status of Municipal Waste Combustion”,

Waste Age (November 1990) .....................-----------.

Kiser, Jonathan V.L. & B. Kent Burton, Waste-to-

Energy in the United States, A Status Update,

Proceedings of the Utah State University Waste

Management Conference (March 4-5, 1992) .......

14

13

14

11

11

5,7

iii

TABLE OF AUTHORITIES—Continued

Michigan Department of Natural Resources,

Michigan Solid Waste Policy (1988) ......0............

National Solid Wastes Management Association,

1990 Landfill Tipping Fee Survey (1991) .........

Smith, Jeffrey D., “Hazardous Waste Landfill Fa-

cility Information”, Environmental Information

oo eh Se ee

State of Florida, Division of Administrative Hear-

ings, Recommended Order, Application for

Power Plant Site Certification of Lee County

Solid Waste Resource Recovery Facility (No.

90-3942EPP) (December 9, 1991) 0000020...

U.S. Dept. of Energy, National Energy Strategy,

$f } %, ee ree

U.S. EPA, Characterization of Municipal Solid

Waste in the United States: 1990 Update, EPA/

580-SW-90-042 (June 1990) 000... eee

U.S. EPA, The Solid Waste Dilemma: An Agenda

for Action, EPA/530-SW-89-019 (February

Page

7,10

11

12,13

17

SD si -ciad licividdimicecuacing ip asrnionnenasicinssaadaebhdalaaia 2,4, 5,6

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-1328

THE CITY OF CHICAGO, et al.,

m Petitioner,

ENVIRONMENTAL DEFENSE FUND, et al.,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

BRIEF AMICI CURIAE OF CITY OF AMES, IOWA,

CITY OF COLUMBUS, OHIO, CITY OF HARRISBURG,

PENNSYLVANIA, CITY OF INDIANAPOLIS, INDIANA,

CITY OF TULSA, OKLAHOMA, DAVIS COUNTY SOLID

WASTE MANAGEMENT AND ENERGY RECOVERY

SPECIAL SERVICE DISTRICT, GREATER DETROIT

RESOURCE RECOVERY AUTHORITY, JOINT BOARD

OF OVERSIGHT FOR THE HAMPTON/NASA/USAF

REFUSE-FIRED STEAM GENERATING FACILITY,

METROPOLITAN GOVERNMENT OF NASHVILLE AND

DAVIDSON COUNTY, TENNESSEE, MINNESOTA

RESOURCE RECOVERY ASSOCIATION, MONTGOMERY

COUNTY, OHIO, NATIONAL INSTITUTE OF MUNICIPAL

LAW OFFICERS, NORTHEAST SOLID WASTE

COMMITTEE, RESOURCE AUTHORITY OF SUMNER

COUNTY, TENNESSEE, SOUTHEASTERN PUBLIC

SERVICE AUTHORITY OF VIRGINIA, ST. CROTX

COUNTY, WISCONSIN, AND YORK COUNTY SOLID

WASTE AND REFUSE AUTHORITY

IN SUPPORT OF PETITIONER

2

This brief amici curiae is submitted in support of the

City of Chicago’s petition for a writ of certiorari seeking

review of the court of appeals’ decision in Environmental

Defense Fund, Inc., et al. v. The City of Chicago, et al.,

948 F.2d 845 (7th Cir. 1991) (reproduced as Appendix

la-17a to the petition). The court of appeals ruled that

section 3001(i) of the Resource Conservation and Re-

covery Act (“RCRA”), 42 U.S.C. § 6921(i) (1988), re-

quires the ash residue from the operation of waste-to-

energy, resource recovery facilities to be managed sub-

ject to the hazardous waste management standards of

RCRA.' Amici submit that the court of appeals’ deci-

sion contradicts the plain meaning and clear legislative

intent of section 3001(i), poses a serious obstacle to

sound management of the growing municipal solid waste

stream in the United States, and requires review by this

Court. The petitioner and respondents have each con-

sented to the filing of this brief and their letters of con-

sent have been filed with the Clerk of the Court.

STATEMENT OF INTEREST OF AMICI

A crisis in solid waste management confronts our Na-

- tion. See U.S. Environmental Protection Agency, The

Solid Waste Dilemma: An Agenda for Action, EPA/530-

SW-89-019 (February 1989) (cited below as the “Agenda

For Action”). The rate at which we produce municipal

solid waste continues to increase. As petitioner notes

(Pet. at 2), in 1988 we produced 180 million tons of

municipal solid waste and the U.S. Environmental Pro-

tection Agency (“EPA”) projects 216 million tons by

the year 2000. Primary responsibility for managing the

growing solid waste stream is with local government

1 The term “municipal solid waste” (or “MSW”) refers primar-

ily to residential solid waste, with some contribution of solid (non-

hazardous) waste from commercial, institutional and industrial

sources. 40 C.F.R. §$241.101(k). A “resource recovery facility”

produces energy (steam and electricity) from the combustion of

MSW. See 42 U.S.C. § 6903(24).

3

or local government agencies and special authorities like

many of the amici (or the local government interests that

other amici represent). See 42 U.S.C. § 6901(a) (4).

It is important to emphasize that amici and their con-

stituents must be concerned with all of the public health,

environmental and economic aspects of managing the

municipal waste stream. That is the context in which

amici have focused on the development of resource re-

covery facilities as a very important tool for addressing

solid waste management. Amici are cities, counties, local

government agencies, and organizations concerned with

municipal solid waste management. In some instances,

amici both own and operate resource recovery facili-

ties. Other amici own resource recovery facilities that

are operated by private vendors. Still others have en-

tered long-term contracts with privately owned and op-

erated resource recovery facilities. More specifically,

amici include a number of cities and counties (Ames,

Iowa; Columbus, Ohio; Harrisburg, Pennsylvania; In-

dianapolis, Indiana; Montgomery County, Ohio; Nashville,

Tennessee; St. Croix County, Wisconsin; and Tulsa, Okla-

homa). Other amici are local government agencies and

special authorities (Davis County Solid Waste Manage-

ment and Energy Recovery Special Service District

(Utah); Greater Detroit Resource Recovery Authority

(Michigan); Joint Board of Oversight, Hampton, Vir-

ginia/NASA/USAF Refuse-Fired Steam Generating Fa-

cility; Resource Authority of Sumner County, Tennessee;

Southeastern Public Service Authority of Virginia; York

County Solid Waste and Refuse Authority (Pennsyl-

vania) ; and the Northeast Solid Waste Committee (North

Andover, Massachusetts) ).2 Another of the amici, the

2 The Southeastern Public Service Authority of Virginia consists

of the cities of Chesapeake, Franklin, Norfolk, Portsmouth, Suf-

folk and Virginia Beach, and the counties of Isle of Wight and

Southhampton. The Northeast Solid Waste Committee is estab-

lished under Massachusetts law as a corporate entity performing

4

Minnesota Resource Recovery Association, is a partner-

ship consisting primarily of public entities working with

the private sector in the development, ownership and

operation of resource recovery facilities and other types

of waste management facilities.» Amicus National In-

stitute of Municipal Law Officers (NIMLO) is a non-

partisan organization representing more than 1,400 local

governments and their attorneys. NIMLO is dedicated

to sound resolution of nationally-important legal issues

affecting municipalities, including waste management

issues.

Resource recovery facilities are key components of the

integrated waste management systems that many local

governments throughout the United States are pursuing

(integrated waste management means the complimen-

tary use of several waste management methods—source

reduction, recycling, waste combustion with energy re-

covery and landfilling—to handle waste in an environ-

mentally sound and economic manner). Agenda for Ac-

tion at 16. Resource recovery facilities use municipal

solid waste as fuel to produce steam and electricity.

These environmentally sound facilities also produce ash

residue as a result of the combustion process, and man-

age the ash as nonhazardous waste consistent with the

governmental functions concerning waste management on behalf of

the following twenty-three Massachusetts communities: Acton, And-

over, Arlington, Bedford, Belmont, Boxborough, Burlington, Car-

lisle, Dracut, Hamilton, Lexington, Lincoln, Manchester, North

Andover, North Reading, Peabody, Tewksbury, Watertown, Wen-

ham, Westford, West Newbury, Wilmington and Winchester.

% The Minnesota Resource Recovery Association’s waste-to-energy

facilities serve the following Minnesota counties: Anoka, Benton,

Carlton, Carver, Clay, Dodge, Douglas, Grant, Hennepin, Hubbard,

Norman, Olmsted, Ottertail, Polk, Pope, Ramsey, Sherburne,

Stearns, Stevens, Todd, Traverse, Wadena, Washington and Wilkin.

The other members of the Association are: Winona and Dakota

Counties, City of Fergus Falls, City of Red Wing, Northern States

Power Company, United Power Association, Quadrant Company,

Richards Asphalt, and ABB Resource Recovery Systems,

5

requirements of Subtitle D of RCRA, 42 U.S.C. §§ 6941-

6949a, and related state laws.

The implications of the court of appeals’ decision that

such ash is instead governed by the hazardous waste man-

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

29b, are severe. The resource recovery facilities that

amici represent produce thousands of tons of ash daily

and are designed to operate 365 days a year. On a com-

posite basis the 137 resource recovery facilities now op-

erating in the United States produce approximately 7.9

million tons of ash annually. See Jonathan V.L. Kiser

& B. Kent Burton, Waste-to-Energy in the United States,

A Status Update, Proceedings of the Utah State Univer-

sity Waste Management Conference 1-2, 7 (March 4-5,

1992) (cited below as “Kiser & Burton”) (calculated

based on data presented). Aside from the financial im-

plications of managing this ash as hazardous waste,

amici and their constituents face serious enforcement

consequences as well—the prospect of lawsuits based on

the Seventh Circuit’s decision is of great concern to re-

source recovery facilities.‘ Finally, the decison below

undermines carefully designed solid waste management

plans for amici and many other communities throughout

the United States that have turned to resource recovery

as an environmentally sound strategy for municipal solid

waste management.

REASONS FOR GRANTING THE WRIT

As the EPA has noted, there is a “serious and grow-

ing solid waste problem in many American cities. As a

nation, we are generating more garbage all of the time,

and we don’t know what to do with it.” Agenda for Ac-

4 The only exception is the Second Circuit, where the governing

interpretation of section 3001(i) directly conflicts with the decision

below. Environmental Defense Fund v. Wheelabrator Technologies,

931 F.2d 211 (2d Cir. 1991), aff’g 725 F. Supp. 758 (S.D.N.Y.

1989), cert. denied, 112 S. Ct. 493 (1991).

6

tion at 8. The volume of municipal solid waste in the

United States continues to increase steadily, both in over-

all tonnage and per capita. Indeed, for the period 1988

to the year 2000 per capita volume is expected to in-

crease by 10 percent. U.S. Environmental Protection

Agency, Characterization of Municipal Solid Waste in

the United States: 1990 Update, at ES-3, EPA/530-SW-

90-042 (June 1990) (cited below as “1990 Update’).

Traditionally, landfilling of MSW had been the primary

management alternative, taking 80 percent or more of

the municipal waste stream. Agenda for Action at 22-23.

Combrstion of MSW, which previously had somewhat

wider use, declined into the 1970’s and early 1980’s as

old incinerators were closed down due to increasingly

stringent air pollution contro] standards. 1990 Update at

54. Although Congress had begun to recognize the di-

mensions of the problem, a landfill crisis followed in the

1980’s. Id. at 56.°

How to respond to these developments—selecting the

best management alternatives—poses very important

policy questions for all levels of government. A principal

response has been the adoption of state and federal laws

and policies encouraging development of resource recov-

ery facilities that employ state-of-the-art air pollution

control systems. Waste combustion with energy recovery

is favored over landfilling, the principal alternative. See

1990 Update at 4. Although more costly in the short

run, resource recovery is environmentally superior to

landfilling. See 54 Fed. Reg. 52209, 52245, column 3

(December 20, 1989) (“The EPA believes it is prefer-

able to burn the combustible materials in an MWC

[municipal waste combustor] [rather] than to landfill

them. Not only is landfilling a disfavored waste manage-

5 Congress warned in 1976 that “land is too valuable a national

resource” to be devoted to disposal of most of our solid waste

stream, and that “alternatives to existing methods of land disposal

must be developed”. 42 U.S.C. §§ 6901(b) (1) and (8).

7

ment option (see RCRA section 1002(b) (8)), but it is

sound policy to recover the energy value of the combus-

tibles rather than burying them” [citations omitted] ).°

In adopting the Solid Waste Disposal Act Amendments

of 1980, Congress expressly recognized that the use of

technology to produce usable energy from waste needed

to be encouraged, both to reduce our reliance on dimin-

ishing fossil fuel resources, as well as to reduce the bur-

den of disposing of increasing volumes of MSW. 42

U.S.C. § 6941a. Following Congress’ lead, a number of

states adopted laws and policies that provided further

encouragement to resource recovery facilities. The result

has been a significant increase since 1985 in the develop-

ment of these facilities by local government. But as a

consequence of the court of appeals’ decision, local gov-

ernment now confronts the specter of RCRA enforcement

actions like the instant case and the overturning of

carefully made solid waste management decisions by

amici and many other communities who are faced with

possible shutdown of resource recovery facilities and can-

cellation of new facilities.

1. Turning first to the immediate enforcement impact

of the decision below, there are approximately 137 re-

source recovery facilities operating in the United States

today (and another 75 under construction or in various

stages of planning). See Kiser & Burton at 1-2. These

facilities are located throughout the United States, and

they manage ash residue subject to RCRA Subtitle D

6 See also Michigan Department of Natural Resources, Michigan

Solid Waste Policy 6 (1988) (although landfilling is still the least

costly waste management option, it is also “the least desirable option

because of the risk of groundwater contamination and the waste

of some valuable materials”); Commonwealth of Massachusetts,

Department of Environmental Protection, Toward a System of

Integrated Solid Waste Management/The Commonwealth Master

Plan 45 (June 1990) (“Preferable to landfilling for the management

of most wastes, combustion offers more effective environmental con-

trol and monitoring systems with less potential for long-term,

irreversible damage to the environment’”’).

8

and related state laws as nonhazardous waste; at no time

have these facilities managed ash as hazardous waste

pursuant to RCRA Subtitle C. Although the impact of

the decision below is most imminent in the Seventh Cir-

cuit (if the Court does not grant the petition, then such

facil'ties would have no choice but to begin managing

resource recovery facility ash subject to Subtitle C re-

quirements), the decision below will, absent review by this

Court, create serious uncertainty for essentially all re-

source recovery facilities.

The court of appeals’ decision poses a Hobson’s choice

for resource recovery facilities. One option would be to

change their method of operation and begin managing

ash residue subject to RCRA Subtitle C. That change in

operations would carry a very steep price, however. As

explained in more detail below (pp. 11-12), the cost

of managing ash residue as hazardous waste could easily

cause current waste management costs to more than dou-

ble, far outstripping the financial resources of the af-

fected communities, and would also require dedicating

limited hazardous waste landfill capacity to disposal of

resource recovery facility ash.

If the instant petition is not granted, it is expected

that respondents (or other organizations with similar

interests) will file additional suits identical to the suit

filed below in the Northern District of Illinois (and the

related suit filed in the Southern District of New York

in the Wheelabrator case, see supra note 4). Both suits

were filed pursuant to the citizen suit provisions of sec-

tion 7002 of RCRA, 42 U.S.C. § 6972. A citizen suit may

be filed under that statute against any person “who is

alleged to be in violation” of any provision of RCRA.

Id. at §6972(a). In these suits, the district courts are

authorized to impose injunctive relief and civil penalties

of up to $25,000 per day of violation. Jd.; see also 42

U.S.C. § 6928(g). The statute of limitations that gener-

ally applies in similar civil penalty actions is five years.

9

See 28 U.S.C. § 2462; see also Public Interest Research

Group of New Jersey, Inc., et al. v. Powell Duffryn Ter-

minals, Inc., 9138 F.2d 64, 73-76 (3d Cir. 1990), cert.

denied, 111 S. Ct. 1018 (1991) (applying 28 U.S.C.

§ 2462 to citizen suits under section 505 of the Federal

Water Pollution Control Act). A resource recovery fa-

cility produces ash every day that it operates, and it is

apparent that the failure to follow the Seventh Circuit’s

view of section 3001(i) of RCRA puts such facilities at

considerable enforcement risk. In short, granting the

petition here will eliminate the troubling uncertainty that

results from the Circuits’ conflicting interpretations of

section 3001 (i).

2. Aside from these enforcement implications, the de-

cision below will seriously undermine carefully designed

solid waste management plans for many communities and

threaten the financial viability of most, if not all, re-

source recovery facilities due to the cost of managing

resource recovery facility ash as hazardous waste. The

economic burden that results from the court of appeals’

interpretation of section 3001(i) cannot be reconciled with

Congress’ intent to encourage resource recovery facilities.

As noted earlier, federal and state laws and policies

adopted in response to the growing solid waste dilemma

vigorously encourage expanded se of resource recovery

facilities and decreased reliance on landfilling of munici-

pal solid waste. In that connection, section 32(a) of the

Solid Waste Disposal Act Amendments of 1980, 42 U.S.C.

§ 6941a, recognizes that “the recovery of energy and ma-

terials from municipal 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”. The laws of a number of states

are very similar. For example, section 32(f) of the Michi-

gan Solid Waste Management Act, Mich. Comp. Laws

§ 299.432(4), prescribes a statewide “strategy to encourage

10

resource recovery and establishment of waste-to-energy fa-

cilities”, as well as “potential regulatory relief to remove

constraints on the siting of waste-to-energy and resource

recovery facilities”, with the “goal of reducing land dis-

posal to unusable residuals by the year 2005”. Section

2(b) of the Tennessee Solid Waste Planning and Recov-

ery Act, Tenn. Stat. Ann. § 68-31-602(b), provides that,

among other things, “waste-to-energy incineration (re-

source recovery) will substantially lessen our dependence

on landfills as a means of disposing of solid waste, aid

in the conservation and recovery of valuable resources,

[and] conserve energy in the process... .” Similarly,

section 102(2) of the Pennsylvania Solid Waste Manage-

ment Act, Pa. Stat. Ann. title 35, § 6018.102(2), en-

courages the development of resource recovery facilities

“as a means of managing solid waste, conserving re-

sources, and supplying energy’”’.’

Implemented through careful solid waste management

planning by local government, these policies have resulted

in a significant increase in resource recovery facilities.

Between 1985 and 1988 annual combustion of MSW with

energy recovery increased from 7.6 to 24.5 million tons.

7 See also Va. Code Ann. §10.1-1402 (Virginia Waste Manage-

ment Board directed to promote the development of resource recov-

ery systems); Ohio Rev. Code Ann. § 3734.40 (offsite waste man-

agemeit, including municipal waste combustion, is a “critical com-

ponent[] of the economic structure of this state, and when prop-

erly controlled and regulated, makes substantial contributions to

the general welfare, health and prosperity of the state and its in-

habitants .. .”); Wis. Stat. § 159.05(4)(s) (combustion of MSW

with energy recovery as a substitute for the use of nonrenewable

fuels is in the public interest and should be encouraged if imple-

mented by a state-approved program that protects health and the

environment). States have also adopted policies to implement these

statutory directives. For example, the goal of the Michigan Solid

Waste Policy, supra note 6, is to manage 35 to 45 percent of the

state’s municipal waste through the use of resource recovery facili-

ties and reduce the amount of MSW going to landfills to 10 percent

by the vear 2005. -

11

1990 Update at 55, Table 26; see also id. at 53. The 1988

level is projected to double by the year 2000 and reach

55 million tons. Jd. at 73. Indeed, the Bush Administra-

tion projects a seven-fold increase between 1991 and

2010 in the amount of electric energy generated in the

United States from MSW combustion. See U.S. Dept. of

Energy, National Energy Strategy 126 (1st ed. 1991/

1992).

The court of appeals’ majority decision is a severe set-

back—and a classic “Catch-22”—for amici and scores of

communities that followed Congress’ lead and developed

resource recovery facilities. These actions were taken

with knowledge that resource recovery facility owner-

ship and operation was not only environmentally superior,

but also generally more costly in the short run than land-

filling MSW.* If the ash residue from a resource re-

covery facility must now be managed subject to hazardous

waste standards, the cost of resource recovery facility

operations will increase dramatically. In this connection

Chicago’s petition notes that a conservative 1990 average

cost to dispose of ash at a hazardous waste landfill would

be $210 per ton. Pet. at 9 n.3 (citing ICF, Inc., 1990

Survey of Selected Firms in the Commercial Hazardous

Waste Management Industry, Draft Report (prepared

for U.S. EPA, Office of Policy Analysis) (Sept. 17,

1991)). That average is consistent with disposal cost

estimates that a number of the amici have developed in-

ternally (amici’s estimates range from $162 to more

8 The processing or “tipping” fees charged by modern resource

recovery facilities are generally $40 to $100 per ton of municipal

solid waste processed. See Jonathan V.L. Kiser, ““A Comprehensive

Report on the Status of Municipal Waste Combustion”, Waste Age

109, 156 (November 1990). In contrast, the 1990 average landfill

tipping fee in the United States was $26.56 per ton. See National

Solid Wastes Management Association, 1990 Landfill Tipping Fee

Survey 6, Table 10 (1991).

12

than $400 per ton, including transportation).® At $210

per ton for ash disposal, the tipping fees charged by

individual resource recovery facilities would easily double

their current levels.’® In short, the court of appeals’ de-

cision portends a dramatic increase in cost far beyond

any level of cost anticipated by the many local govern-

ments that chose resource recovery facilities as an en-

vironmentally sound solid waste management strategy.

The result could be to force many existing facilities to

shut down, and future development of new facilities would

essentially be eliminated, contrary to RCRA’s policy of

encouraging resource recovery.”

* At present there are only 21 hazardous waste landfills in the

United States. See Jeffrey D. Smith, “Hazardous Waste Landfill

Facility Information”, Environmental Information Digest 24 (March

1992) (cited below as “EI Digest”). As a result, long distance

transportation would frequently be required.

10 For example, one of the amici, the York County Solid Waste

and Refuse Authority, currently charges a tipping fee of $53.75 per

ton of MSW, of which approximately $4.50 represents ash disposal

costs in a nonhazardous waste landfill (York County currently pays

approximately $15.00 per ton for ash disposal; based on a 70 percent

weight reduction ratio when a ton of MSW is combusted, the $15.00

figure represents a $4.50 portion of the tipping fee for each ton of

MSW received for processing). Using the conservatively estimated

$210 per ton cost for disposal of resource recovery facility ash as

hazardous waste, and adding long distance transportation costs,

tipping fees would more than double.

11 It is likely to be more economic for a community that is pres-

ently served by a resource recovery facility to shut down the facil-

ity, landfill the community’s MSW, and pay the associated landfill

tipping fees as well as the fixed costs on the dormant resource re-

covery facility rather than operate the facility and have to absorb

the cost to manage ash residue as hazardous waste. Moreover, the

potential liability associated with navigating the complex scheme

of federal hazardous waste regulations would further discourage

resource recovery facilities, in direct contradiction of Congress’

policy of encouraging these facilities.

13

One additional point should be noted in this regard.

Hazardous waste landfill disposal capacity is limited. It

has been estimated that as of the end of 1987, the United

States had 34 million tons of hazardous waste landfill

capacity.’? Only one hazardous waste landfill has been

permitted since 1987 (in fact, only one hazardous waste

landfill has been permitted during the past twelve years) .*

Given the difficulty of siting hazardous waste landfills,

significant additional capacity is unlikely to become avail-

able soon. On the other hand, resource recovery facilities

currently in operation produce approximately 7.9 million

tons of ash each year. See supra, p. 5. If as a result

of the decision below that ash is required to be disposed in

hazardous waste landfills, it can readily be seen that all

of the United States’ current hazardous waste landfill

capacity would be consumed within a very short period.

3. Finally, the court of appeals’ decision is wrong

as a matter of statutory construction. This Court has

often stated that in determining the meaning of a statute,

courts should look to the particular statutory language

at issue within the context of the statute as a whole,

including its object and policy. E.g., Crandon v. United

States, 494 U.S. 152, 158 (1990). The Seventh Circuit’s

narrow reliance on the absence of the word “generation”

in section 3001(i) to conclude that resource recovery

facility ash is subject to hazardous waste regulation

ignores that fundamental tenet of statutory construction.

12 See Regulation of Municipal Solid Waste Incinerators: Hearing

on H.R. 2162 Before the Subcommittee on Transportation and Haz-

ardous Materials of the House Committee on Energy and Com-

merce, 101st Cong., 1st Sess. 198 (1989) (testimony of David L.

Sokol, Chairman of the Institute of Resource Recovery). EPA has

not published an estimate of hazardous waste landfill capacity in the

United States.

13 This is the Last Chance, Colorado hazardous waste landfill,

which began operation in July, 1991. See EI Digest, supra note 10,

at 24. Last Chance has 2.5 million tons of capacity. Jd. at 26,

14

When Congress adopted section 3001(i) as part of the

1984 amendments to RCRA the regulatory context in

which Congress addressed resource recovery facility ash

was one that already exempted such ash from regulation as

a hazardous waste. More specifically, EPA’s 1980 “house-

hold waste exclusion” unambiguously excluded from haz-

ardous waste regulation the ash residue that remains fol-

lowing combustion of household waste. City of Chicago,

948 F.2d at 349 (EPA’s 1980 preamble “most definitely

exempted ash from regulation as a hazardous waste”).

Adopted as part of the EPA’s regulations governing

RCRA’s hazardous waste management program, the

household waste exclusion implemented congressional in-

tent to exclude waste streams produced at the household

level from hazardous waste management. See 45 Fed.

Reg. 33084, 33099 (May 19, 1980) (quoting S. Rep. No.

988, 94th Cong., 2d Sess. 16 (1976) (RCRA’s hazardous

waste management program “is not to be used to control

the disposal of substances used in households or to extend

control over general municipal wastes based on the pres-

ence of such substances”) ). EPA concluded that “[s]ince

household waste is excluded in all phases of its manage-

ment, residues remaining after treatment (e.g., incinera-

tion, thermal treatment) are not subject to regulation as

hazardous waste.” 45 Fed. Reg. at 33099 (emphasis

added). Importantly, EPA emphasized that incinerator

ash was not subject to hazardous waste regulation because

the exclusion applies to “all phases of [the] management”’

of household waste, including ash residue after treatment,

such as incineration.

Thus, when Congress enacted section 3001(i) in 1984,

the regulatory status of MSW ash was clear: ash remain-

ing after incineration of household waste was not subject

to RCRA Subtitle C hazardous waste regulation. Congress

is presumed to know an agency’s interpretation of a law

pertinent to legislation Congress is enacting, Miles v. Apex

Marine Corp., 111 §. Ct. 317 (1990), and this is the con-

15

text in which Congress was operating when it added sec-

tion 3001(i)—the “Clarification of Household Waste Ex-

clusion”—in 1984. The statute 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 purposes of regulation

under this subchapter” if the facility receives and burns

only household waste and nonhazardous commercial or

industrial solid wastes and establishes appropriate pro-

cedures to assure that hazardous wastes are not received

at or burned at the facility. 42 U.S.C. § 6921(i). In other

words, the household waste exclusion already encompassed

“all phases” of the “management” of household waste,

including “treatment” (e.g., incineration), and section

3001 (i)’s use of the term “otherwise managing” continued

the Subtitle C exemption for ash residue. Indeed, the plain

language of the section 3001(i) “clarification” does noth-

ing to terminate the prior exclusion for ash from resource

recovery facilities that burn household and nonhazardous

commercial or industrial waste. Instead, section 3001 (i)

“clarified” the preexisting household waste exclusion by

providing that a resource recovery facility that burns

household waste and nonhazardous waste from sources

other than households (e.g., commercial sources) will re-

main entitled to the exclusion if precautions are taken

to ensure that the facility does not accept or burn hazard-

ous waste. S. Rep. No. 284, 98th Cong., 2d Sess. 61

(1983). This unique mechanism is not available to any

other type of waste management facility.

The court of appeals’ majority ignores this context and

narrowly reads section 3001(i) as an evisceration of

EPA’s regulatory position by focusing on the absence of

the word “generation” in section 3001(i). Nothing in the

legislative history even remotely suggests that Congress, by

not including the word “generation”, intended the result

reached by the court of appeals. To the contrary, since

1976 Congress has on numerous occasions expressed its

16

intent to promote resource recovery facilities. See, e.g.,

42 U.S.C. § 6902(a) (1) (objectives of RCRA include pro-

motion of resource recovery and resource conservation sys-

tems). In fact, the Senate Report accompanying section

3001 (i) explicitly states that “[i]t is important to encour-

age commercially viable resource recovery facilities and to

remove impediments that may hinder their development

and operation.” S. Rep. No. 284 at 61.

Key legislative history confirms that section 3001 (i) ex-

cludes resource recovery facility ash from hazardous waste

regulation. The Senate Report accompanying the legis-

lation states that the section 3001(i) exclusion applies to

“Tajll waste management activities including the genera-

tion, transportation, treatment, storage and disposal of

waste.” §S. Rep. No. 284 at 61 (emphasis added). Put

another way, Congress unequivocally intended to exclude

“all waste management” activities associated with resource

recovery facilities. That is precisely what the statute

says—activities that would constitute “otherwise manag-

ing hazardous wastes,” which necessarily includes genera-

tion of hazardous waste, are excluded. When examined in

this overall legislative context, the court of appeals’ reli-

ance on the absence of the word “generation” in section

3001 (i) is plainly incorrect."

14 The Conference Committee adopted the Senate’s proposed clar-

ification of the household waste exclusion without change, stating

only that “the Senate amendment clarifies that an energy recovery

facility is exempt from hazardous waste requirements if it burns

only residential and non-hazardous commercial wastes and estab-

lishes procedures to assure hazardous wastes will not be burned at

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

106 (1984).

The Seventh Circuit’s interpretation of section 3001(i) also

renders the statute essentially meaningless. See, e.g., Sutton v.

United States, 819 F.2d 1289, 1295 (5th Cir. 1987) (it is presumed

that Congress does not pass meaningless legislation). As explained

by the district court in Wheelabrator, supra note 4, if resource

recovery facility ash is not excluded from hazardous waste regula-

tion, “it is difficult to understand what, if any, benefit resource re-

17

Finally, the Seventh Circuit’s decision may also result

from a fundamental misconception regarding the nature

of landfilled municipal solid waste and resource recovery

facility ash. The court of appeals said “[i]t is unlikely

that Congress, in an express effort to promote the proper

disposal] of dangerous substances that otherwise would seep

into the ground and water table, would sanction the dump-

ing of massive amounts of hazardous waste in the form of

ash into ordinary landfills.” 948 F.2d at 352. But con-

trary to the court of appeals’ assumption, landfilling of

MSW poses greater environmental concern than landfill

disposal of ash, a fact that is reflected in governmental pol-

icies encouraging the development of resource recovery

facilities. See supra note 6."

In sum, the Seventh Circuit’s conclusion that by a

sleight of hand Congress significantly limited the scope

of the household waste exclusion is wrong and entirely

covery facilities derive from the exemption.” 725 F. Supp. at 763

n.12. Simply put, if a resource recovery facility receives only non-

hazardous waste, it never will be subject to hazardous waste regu-

lation as a treatment, storage or disposal facility and no exemption

would be needed. The only meaningful interpretation of section

3001(i)—that MSW ash is exempt from hazardous waste regula-

tion—was correctly reached by the Second Circuit in Wheelabrator.

15 See generally State of Florida, Division of Administrative

Hearings, Recommended Order at 6, Application for Power Plant

Site Certification of Lee County Solid Waste Resource Recovery

Facility (No. 90-3942EPP) (December 9, 1991) (the leachate from

resource recovery facility ash is far less of an environmental con-

cern than the leachate from MSW). It should also be noted that

the Seventh Circuit’s above-quoted statement appears to have been

made without considering the record in this case, which shows that

ash from Chicago’s Northwest Waste-to-Energy Facility is dis-

posed in Michigan at a monofill (a sanitary landfill that receives

only municipal incinerator ash) that is lined and equipped with

ground water monitoring and leachate collection systems. Pet. at

6-7. Those disposal standards are generally required by Michigan

law, Mich. Comp. Laws § 299.432a, and typical of the laws of a

number of other states. See, e.g., Mass. Regs. Code title 310,

§ 19.119.

18

inconsistent with the language and purpose of RCRA

section 3001(i). See Green v. Block Laundry Machine Co.,

490 U.S. 504, 521 (1989) (party contending that legis-

lative action changed governing law has the burden of

showing that the legislature intended such a change).

That interpretation of section 3001(i) jeopardizes the

viability of existing resource recovery facilities and the

development of new facilities, and encourages environ-

mentally inferior alternatives (such as landfilling) for

managing municipal solid waste, all of which is contrary

to clearly expressed federal policy.

To resolve the conflict in the Circuits and clarify this

important issue of federal environmental law, this Court

should grant the City of Chicago’s petition for a writ of

certiorari and reverse the judgment of the court of

appeals.

CONCLUSION

For the foregoing reasons, amici urge the Court to

grant the petition for a writ of certiorari.

Respectfully submitted,

Scott M. DuBoFrF *

ANDREAS H. I ESKOVSEK

WINSTON & STRAWN

1400 L Street, N.W.

Washington, D.C. 20005-3502

(202) 371-5704

Counsel for Amici Curiae

City of Ames, Iowa et al.

JOHN R. KLAUS PAUL BURTON

City Attorney City Attorney

515 Clark Avenue 22 Lincoln Street

Ames, Iowa 50010 Hampton, Virginia 23669

Counsel for City of Ames, lowa Counsel for Joint Board of

Oversight for the Hampton/

NASA/USAF Refuse-Fired

* Counsel of Record Steam Generating Facility

RONALD J. O’BRIEN

City Attorney

DANIEL W. DRAKE

Assistant City Attorney

90 West Broad Street

Columbus, Ohio 43215

Counsel for City of Columbus,

Ohio

HOWARD J. WEIN

KLETT, LIEBER, SCHORLING

& ROONEY

One Oxford Centre—40th floor

Pittsburgh, Pennsylvania

15219-6498

Counsel for City of Harrisburg,

Pennsylvania

SHEILA M. O’BRYAN

Assistant Corporation Counsel

1601 City-County Building

Indianapolis, Indiana 46204

Counsel for City of Indianapolis,

Indiana

NEAL E. MCNEILL

City Attorney

PATRICK T. BOULDEN

Assistant City Attorney

City Hall Room 316

200 Civic Center

Tulsa, Oklahoma 74103

Counsel for City of Tulsa,

Oklahoma

L. R. GARDINER

GARDINER & HINTZE

525 East 1st South Street

Salt Lake City, Utah 84102

Counsel for Davis County Solid

Waste Management and

Energy Recovery Special

Service District

JOHN D. PIRICH

HONIGMAN MILLER SCHWARTZ

& COHN

Michigan National Tower—

Suite 1400

Lansing, Michigan 48933

Counsel for Greater Detroit

Resource Recovery Authority

19

PATRICIA J. COTTRELL

Director of Law ‘

STEPHEN O. NUNN

Metropolitan Attorney

Metropolitan Courthouse—

Room 204

Nashville, Tennessee 37201

Counsel for the Metropolitan

Government of Nashville and

Davidson County, Tennessee

JANINE L. MIGDEN

HAHN, LOESER & PARKS

431 East Broad Street

Columbus, Ohio 43215

Counsel for Montgomery County,

Ohio

BENJAMIN L. BROWN

National Institute of Municipal

Law Officers

1000 Connecticut Avenue, N.W.

Suite 900

Washington, D.C. 20036

Counsel for National Institute of

Municipal Law Officers

RUTH ELLEN FITCH

RALPH A. CHILD

PALMER & DODGE

One Beacon Street

Boston, Massachusetts 02108

Counsel for Northeast Solid

Waste Committee

PETER M. HUBER

WILLCOXx & SAVAGE, P.C.

1800 Nationsbank Center

One Commercial Place

Norfolk, Virginia 23510-2197

Counsel for Southeastern Public

Service Authority of Virginia

Grecory A. TIMMERMAN

Corporation Counsel

St. Croix County Courthouse

911 Fourth Street

Hudson, Wisconsin 54016

Counsel for St. Croix County,

Wisconsin