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

, espiome Court, US.

a9 Sh FILED

APR 20 1999

No. | OFFICE OF jus Cc...

el nalage

IN THE =

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

THE CITY OF CHICAGO, et al.,

Petitioners,

i

ENVIRONMENTAL DEFENSE FUND, et al.,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF OF THE CITY OF SPOKANE,

WASHINGTON; SPOKANE COUNTY,

WASHINGTON; SKAGIT COUNTY, WASHINGTON;

CITY OF TACOMA, WASHINGTON; MARION

COUNTY, OREGON; RECOMP OF WASHINGTON;

AND REGIONAL DISPOSAL COMPANY AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

Craig S. Trueblood

PRESTON THORGRIMSON

SHIDLER GATES & ELLIS

1400 Seafirst Financial Center

W. 601 Riverside Avenue

Spokane, WA 99201

(509) 624-2100

Attorneys for Amici Curise

oe as , g ns i. - — + a a inl oe Ta an 7 Sa es

TABLE OF CONTENTS

py OR Dg i re

oot ee ee ee

SUMMARY OF ARGUMENT .........-+-.+4--.

ARGUMENT

CONCLUSION

TABLE OF AUTHORITIES

Cases: Page

itizens for Cl Air v. Ci f ,

114 Wn.2d 20, 785 P.2d 447 (1990) ...... 2

nvir nme f F Inc. v. Ci

Chicago, 727 F. Supp. 41S (N.D. Ill.

1989), reversed, 948 F.2d 345 (7th Cir.

COED ce ee a ee ee 10, 13

Environmental Defense Fund, Inc. v. Wheelabrator

Technologies, Inc., 725 F. Supp. 758

(S.D.N.Y. 1989), affirmed, 931 F.2d 211

(2d Cir.), cert. denied, 112 S.Ct. 453

SUE MES e Os OU Sree eS ERA 13

Statutes and Regulations:

Federal

33 U.S.C.A. § 1288 (West Supp. 1991) ........ 1

42 U.S.C.A. § 6901(a)(4) (West 1983) ........ 11

42 U.S.C.A. § 6901(c) and (d) (West 1983) ...... 8

42 U.S.C.A. § 6903(5) (West 1983) ........... 6

42 U.S.C.A. § 6903(27) (West 1983) .......... 6

42 U.S.C.A. § 6921 (West Supp. 1991) ........ 4

42 U.S.C.A. § 6921(i) (West Supp. 1991) ....... 7

42 U.S.C.A. § 6926(b) (West Supp. 1991) ...... 13

42 U.S.C.A. § 6941 (West Supp. 1991) ........ 7

42 U.S.C.A. § 6941(a)(1) - (3) (West 1983) ...... 8

42 U.S.C.A. § 6942(c)(10) and (11) (West Supp. 19912

42 U.S.C.A.

42 U.S.C.A.

42 U.S.C.A.

42 U.S.C.A.

42 U.S.C.A.

42 U.S.C.A.

42 U.S.C.A.

42 U.S.C.A.

42 U.S.C.A.

42 U.S.C.A.

40 CFR 8 261.

40 CFR 8 261.

40 CFR § 300.66

43 Fed.

43 Fed.

45 Fed.

49 Fed.

51 Fed.

56 Fed.

State

Fla. Admin. Code ch. 17-702 (1990)

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

Reg.

Reg.

Reg.

Reg.

Reg.

Reg.

wo wow ho wm

wo we wo wo wm

5566 (Feb. 9, 1978)

58969 (Dec. 18, 1978)

3309 (May 19, 1980)

40,320 (October 15, 1984)

21,054 (June 10, 1986)

50978 (Oct. 9, 1991)

6943(a) (West 1983) ........

6943(a)(2) (West 1983) ......

6943(c) (West Supp. 1991) ....

6943(d) (West Supp. 1991) ....

6945(c) (West Supp. 1991) ....

6947(a) (West 1983) ........

6947(b) (West 1983) ........

6991c (West Supp. 1991) .....

6902(a)(1) (West Supp. 1291)

6902(a)(7) (West Supp. 1991)

er a ee eee

SE ee

ee en aan ee ee ee OS SS & OOS 6. UD

i i Set a oF

14

14

iv

Gode Whe. RR. ah. GG UUs ck cc ee eee ees 14

Mich. Comp. Laws §§ 299.432a - .432b (1991) .. 14

26 Me, Come 0 Fear Cteee scr eee eee ee 14

Wash. Rev. Code ch. 70.138 (1989) .......... 13

Wash. Rev. Code ch. 70.95 (1989) ............ 2

Wash. Rev. Code § 70.95.010(9) (1989) ........ 3

Wash. Rev. Code § 70.95.110 (1990-92 Supp.) .. 12

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

Mass. Regs. Code title 310, §§ 19.119, .131

i... SEES PC ees ee ee 14

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

a are eee 14

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

SO cae shee sacs eh b CROSS 4: 14

Wash. Admin. Code ch. 173-306 § 440 (1990) .... 6

Wash. Admin. Code ch. 173-304 § 460 (1990) .... 6

Wash. Admin. Code ch. 173-306 (1990) ....... 14

Wash. Admin. Code § 173-306-200 (1990) ..... 14

Wash. Admin. Code § 173-306-470 (1990) ..... 14

Wash. Admin. Code §§ 173-306-350, -450 (1990) 14

Congressional Materials:

S. Rep. No. 988, 94th Cong., 2d Sess. 16 (1976) .. 7

Periodicals and Reports:

har ion of Muni | m ion Ash

Ash Extracts and Leachates (March 1990)

ge TE So” 7

har rizati f MW h from

MSW Landfills, Monofills an -Di |

Sites (1987) (EPA/530-SW-87-028F) ...... 7

Final_ Municipal Waste Combustion Ash and Leachate

Characterization, Woodburn, Oregon (1989) .. 7

Formati |_of

Leach —— = vine Landfills eee 1987)

(Wisconsin Department of Natural Resources) . 7

Rt IU hg a a Rs 7

Municipal Solid Waste Composition and the Behavior of

Metals in Incinerator Ashes (Feb. 1988) ..... 7

Municipal m i :

Conaress, p. 26, (June 1987)

EE Ee i)

Water Quality Management Plan to Preserve the Quality

of the Spokane-Rathdrum Aquifer (1979) ...... 1

1984 n iv lid W

EE ik ort 2

1992 k n hensiv lid _W

The City and County of Spokane, Washington; the

City of Tacoma, Washington; Skagit County, Washington;

Marion County, Oregon; Regional Disposal Company; and

Recomp of Washington respectfully submit this brief as

amici curiae in support of the petition of the City of

Chicago and Mayor Richard M. Daley for a writ of

certiorari to the United States Court of Appeals for the

Seventh Circuit.’

INTERESTS OF AMICI

The United States faces a waste disposal crisis.

In contrast to landfills, space for which is fast

disappearing, incineration recovers energy from and

reduces the volume of municipal trash. These benefits,

among others, make resource recovery a key weapon in

the war on waste. The decision of the Court of Appeals,

however, threatens to foreclose resource recovery and to

punish every private and public entity that accepted

Congress's invitation to exploit its benefits.

For the City and County of Spokane, Washington,

resource recovery was a response not only to a waste

disposal crisis, but also to a drinking water crisis. The

citizens of the City of Spokane and Spokane County

(collectively “Spokane”) are blessed with a priceless

resource: the Spokane Valley-Rathdrum Prairie Aquifer.

The aquifer is the federally designated sole source of

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

5566 (Feb. 9, 1978). Yet it is also a fragile resource,

subject to pollution by landfills. Landfills above the aquifer

have been a concern for rnany years.

Contamination of the aquifer from solid waste

landfills was first noted in 1979 when the Spokane

County Engineer’s office issued its Water Quality

M i ne-

Management Plan to Preserve the Quality of the Spokane-

Rathdrum Aquifer under Section 208 of the Federal Water

Pollution Control Act, 33 U.S.C.A. § 1288 (West Supp.

1991). The Water Quality Management Plan

The parties’ letters of consent, pursuant to Rule 36 of the

Rules of this Court, have been filed with the Clerk.

2

recommended that resource recovery, recycling, and

innovative disposal methods be considered as alternatives

to landfills. In 1984 Spokane’s Northside Landfill was

placed on the National Priorities List (NPL) of waste

cleanup sites, commonly referred to as "Superfund sites."

49 Fed. Reg. 40,320 (October 15, 1984). Spokane’s

landfills at Mica, Greenacres and Colbert were also added

to the NPL. 51 Fed. Reg. 21,054 (June 10, 1986).? The

Mica, Greenacres and Colbert landfills are now closed, and

all _ a few acres of the Northside Landfill are closed as

well.

In response to this crisis involving both its drinking

water supply and its waste disposal capacity, Spokane

began a regional public planning process. Spokane’s goal

was to consider local needs and policies and develop a

balanced waste management program in accordance with

the Washington Solid Waste Management Act ("SWMA"),

Wash. Rev. Code ch. 70.95 (1989).

The first step in the planning process was to

consider alternatives to solid wastes landfills. In 1981

Spokane began analyzing resource recovery and recycling.

Three years later it adopted the 1984 Spokane County

; 1

("1984 Plan"). The 1984 Plan includes specific elements

for recycling, waste reduction and resource recovery;

garbage landfills are only a last resort for Spokane. The

Washington Department of Ecology ("Ecology") approved

the 1984 Pian, and the Washington Supreme Court held it

was consistent with the SWMA. Citizens for Clean Air v.

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

To mitigate the effects of existing landfills as

rapidly as possible, Spokane aggressively implemented the

recycling and resource recovery elements of the 1984

Plan. Recycling programs increased the recycling rate in

2 Sites are added to the NPL only if the Environmental Protection

Agency finds that they present a significant risk to public health or the

environment compared to other sites in the nation. 40 CFR § 300.66

(1991).

3

Spokane County from 5% in 1984 to 31% in 1991.” To

manage the rest of the waste stream, Spokane issued an

environmental impact statement and selected a site for a

"waste-to-energy facility” ("WTE") in 1986. in 1987

Spokane signed a vendor contract to build and operate the

WTE, a power sales contract for the electricity that the

WTE generates, and a lease for the WTE site. In 1989

Spokane issued $103 million in bonds and accepted a $60

million grant from Ecology to design and build the WTE

and recycling programs. In 1990 Spokane signed a long-

term coniract for ash disposal away from Spokane’s

aquifer at amicus Regional Disposal Company’s new state-

of-the-art landfill in Klickitat County, Washington.

Amici Skagit County, Marion County and Tacoma

all faced solid waste disposal challenges similar to

Spokane’s. They planned long-term, integrated strategies

and opted for resource recovery as cost-effective and in

the best interests of their local communities. Whatcom

County, Washington, under the planning requirements of

SWMaA, elected to use private incineration and ash landfill

facilities located in Whatcom County but owned and

operated by amicus Recomp of Washington ("Recomp").

Amicus Regional Disposal owns and operates an ash

landfill in Klickitat County, Washington, that serves

Spokane and could become an ash disposal facility for any

new or existing resource recovery facilities in the Pacific

Northwest.

3

Spokane’s long-range goal is to recycle 50% by 1995, in

accordance with the goal set by the Washington Legislature. Wash.

Rev. Code § 70.95.010(9) (1989). See also Spokane County

Comprehensive Solid Waste Management Plan Update, pp. 75 and 100

- 101 (March 1991).

4

SUMMARY OF ARGUMENT“

Congress provided a comprehensive national

framework. for waste management in the Resource

Conservation Recovery Act, 42 U.S.C. §§ 6901 - 6992k

("RCRA"). RCRA establishes minimum _ federal

requirements that are implemented at the state and local

level. State and local government may supplement

RCRA’s minimum requirements with more stringent

standards.

At the heart of RCRA is a distinction between

wastes that are “hazardous” and wastes that are not.

See 42 U.S.C.A. § 6921 (West Supp. 1991).

“Hazardous” wastes are a small, distinct subset of "solid"

wastes. Hazardous wastes are subject to very stringent

minimum standards under Subtitle C of RCRA. See 42

U.S.C.A. §§ 6921 - 6939b (West Supp. 1991). Subtitle

C standards detail all phases of hazardous waste

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

to the design standards for large regional landfills. Solid

wastes are subject to an equally comprehensive but less

stringent set of minimum standards under Subtitle D of

are See 42 U.S.C.A. §§ 6941 - 6949a (West Supp.

).

Congress's decision to regulate hazardous and solid

wastes separately rests on the sound principle that

hazardous wastes pose the greatest risk to public health

and should be regulated more stringently than other

wastes. Congress also recognized, however, that applying

Subtitle C standards broadly could discourage beneficial

activities. Furthermore, effective implementation of

Subtitle C requires that regulations be focused on the

relatively small number of industries that generate the

largest amounts of hazardous waste. Thus, Congress

Amici curiae agree with petitioners’ arguments that the Court

should grant review because the Second and Seventh Circuits have

issued conflicting rulings, because the Seventh Circuit’s decision

contravenes RCRA’s language and Congress’s intent, and because the

question presented calls for judicial resolution. The thrust of this brief

is different: It calls attention to the uncertainty created in the Pacific

Northwest by the Seventh Circuit’s decision and shows how that

decision undercuts fundamental! statutory policies in RCRA.

5

authorized exclusions to its definition of hazardous waste

and entrusted the states with the primary responsibility for

regulating the remaining waste stream.

The Court of Appeals’ decision in this case ignores

these key policy considerations. The Seventh Circuit’s

interpretation of RCRA would subject local sclid waste

management to stringent Subtitle C standards. If adopted

in the Ninth Circuit, the court’s interpretation would

require Pacific Northwest cities and counties implementing

resource recovery and recycling programs to amend

existing waste managerjaent plans and to even consider

abandoning existing public and private waste management

facilities. Cities and counties would be required in the

1990s to start yet another decade-long effort to address

the solid waste crisis, but with less time and even fewer

options than were available in the 1980s.

The Court of Appeals’ decision also threatens to

disrupt existing contractual arrangements between the

public and private sectors. Long-term contracts have been

signed based on predictable, long-term operating costs.

Hundreds of millions of dollars worth of municipal bonds

have been issued and repayment terms negotiated based

upon predictable, long-term ash disposal fees. An

immediate and unexpected 300% increase in landfill costs

could jeopardize the ability of government to repay these

bonds. This in turn could ruin municipal bond ratings and

jeopardize financing for roads, buildings, bridges, sewers,

waste water treatment plants, landfill closures and public

transit.

Such costs might be tolerable if they made possible

some significant public benefit. Imposing Subtitle C

standards on ash, however, will not provide any additional

protection for the public. In Oregon and Washington, ash

and other processed solid wastes are managed under

specifically tailored standards that are at least as stringent

as EPA’s newest Subtitle D standards.° In a landfill

environment, ash is less troublesome than unprocessed

In October 1991 EPA substantially upgraded its Solid Waste

Disposal Facility Criteria. 56 Fed. Reg. 50978 (October 9, 1991) (to

be codified at 40 CFR Parts 257 and 258).

6

garbage. Making ash management subject to Subtitle C

will not protect the public or help solve the nation’s solid

waste crisis, but instead will merely impose Respondents’

waste management agenda on state and local government.

ARGUMENT

v. Ash - L Risk he Public Than Municipal

Solid Waste ("MSW").

Congress provides different levels of regulation

under RCRA, depending on the degree of risk to the public

from improper management of different kinds of waste.

Hazardous waste can "cause or significantly contribute to

an increase in mortality or an increase in serious illness"

and can "pose a substantial present or potentiai hazard to

human health or the environment." 42 U.S.C.A. 8

6903(5) (West 1983). Solid waste, on the other hand, is

“any garbage, refuse, sludge .. . and any other discarded

material," regardless of the threat posed to the public or

environment. 42 U.S.C.A. § 6903(27) (West 1983).

Both municipal solid waste® and ash from its

incineration have been tested to determine potential public

health concerns. Extensive testing of leachate’ from ash

and MSW has been documented by public agencies and

* "Municipal solid waste", or "MSW," refers to waste from

households, businesses and institutions that is excluded from the

definition of “hazardous” in RCRA and EPA regulations. See footnote

10, infra.

7?

“Leachate” refers to liquids such as water that pass through

a waste material and collect contamination from the waste. Leachate

from a landfill can migrate and pollute ground water unless collected

and properly treated and disposed. A system of landfill liners and

collection pipes a this purpose. See, eg., EPA Solid Waste

Disposal Facility Cri B+, Fed. Reg. ett (Oct. 9,

1991); Minimum i for li Handlin

Facilities, Wash. Admin. Code ch. 173- 304 ; 460 ELIOR and Special

Incinerator Ash Management Standards, Wash. Admin. Code ch. 173-

306 § 440 (1990).

7

private companies for both research and compliance

purposes. The U.S. Environmental Protection Agency’s

"Toxic Characteristic Leaching Procedure” ("TCLP"), which

is used to determine if a solid waste is "hazardous",

mimics leachate generation in a landfill. 40 CFR § 261.24

(1991). TCLP tests on ash and ash landfill leachate have

been compared to the results of tests on MSW landfill

leachate.’ Consistently, leachate from ash is less

contaminated than the leachate from MSW landfills.

These tests clearly demonstrate that, in a landfill

environment, ash presents less risk of ground water

pollution than MSW. It is undisputed that MSW is not

regulated as a "hazardous" waste under Subtitle C of

RCRA."° Congress concluded that MSW can be safely

regulated under Subtitle D as a solid waste. The Court

of Appeals’ decision imposing Subtitle C standards on ash

management is perverse. Congress did not intend Subtitle

* EPA, Characterization of Municipal Combustion Ash, Ash

Extracts and Leachates (March 1990) (EPA/530-SW-90-29A); NUS

orp., Final Municipal Waste Combustion Ash aid Leachate

a) (agter zation, “Woodburh, Ore. (1989); Ujihara, Managing Ash

From “om Munie:pal Waste Incineration (Nov. 1989); Clapp, Municioal Solid

Waste Composition and th havior of ls_in_Inciner ASH

(Feb. 1 ); McGinley and Kmet, Formati har

Tr

eatment and Disposal of Leachate from MSW Landfills aaut 7987)

(Wisconsin Department of Natural Resources).

* NUS Corp., Characterization of MWC Ash nd Leach

from MSW Landfills, Monofills an -Di ites (1987) (EPA/530-

SW-87-028F).

‘© — Congress clearly intended that "general municipal wastes” not

be regulated as hazardous. S. Rep. No. 988, 94th Cong., 2d Sess. 16

(1976). See also 42 U.S.C.A. § 6941 (West Supp. 1991).

“Household” waste, regardiess of its content or quantity, has been

excluded from Subtitle C since RCRA’s inception. 43 Fed. Reg. 58969

(Dec. 18, 1978)(promulgating 40 CFR § 261.4(b)(1) (1991)). In 1984

Congress provided a “clarification of household hazardous waste

exclusion” in the section of RCRA that is the focus of this: litigation;

i.e., 42 U.S.C.A. § 6921(i) (West Supp. 1991) (herein "RCRA Section

3001(i)"). Small quantities of waste from businesses and institutions,

regardless of content, have also been excluded from Subtitle C since

RCRA’s inception. 43 FR 58969 (Dec. 18, 1978); 40 CFR § 261.5

(1991). Together, these exclusions allow local government to manage

MSW outside the confines of Subtitle C.

8

C to apply to waste that poses less risk to public health

than MSW.

2. Applyin i to Ash Di ‘

Beneficial Waste Management Options.

The Court of Appeals’ interpretation of RCRA

threatens the viability of both of the key alternatives to

MSW landfills: resource recovery and material separation.

RCRA, however, reflects a national policy that encourages

resource recovery and recycling. Conaress found:

[Millions of tons of recoverable :naterial

which could be used are needlessly buried

each year [, and] methods are available to

separate usable materials from solid waste.

[Slolid waste represents a potential source

of solid fuel, oil or gas that can be

converted intc energy [, and] technology

exists to produce usable energy from solid

waste.

42 U.S.C.A. § 6901(c) and (d) (West 1983). See also id.

§ 6941(a)(1) - (3).

Compliance with Subtitle C would dramatically

impact existing resource recovery and ash disposal

facilities. For example, Spokane transports ash for off-site

disposal at a privately owned landfill and pays a "tipping

fee" to amicus Regional Disposal Company, the landfill

owner. The tipping fee is based in part on landfill

operating costs, which are in turn influenced by the extent

of landfill regulations. Amici Skagit County, Marion

County and Tacoma dispose of ash at publicly owned

landfills. These communities do not pay tipping fees, out

instead directly finance the costs of operating ash landfills.

Amicus Recomp owns and operates resource recovery and

ash disposal facilities in Whatcom County, Washington,

and charges a disposal fee based on the cost of operating

both facilities. Typically, ash disposal costs represent 20

, 30% of the cost of operating a resource recovery

acility.

The relative costs of operating Subtitle C and

Subtitle D landfills are reflected in the tipping fees charged

by these facilities. The tipping fee for off-site ash disposal

in the Pacific Northwest is approximately $35 - 40 per

ton. The operating cost for on-site ash disposal in the

Northwest is approximately $25 - 30 per ton.'' The cost

of disposal at RCRA Subtitie C facilities in the Pacific

Northwest, on the other hand, is approximately $120 -

140 per ton."?

Thus, the Court of Appeals’ decision would impose

an immediate tipping fee increase on existing facilities of

at least 300%.'” Many resource recovery facilities would

be forced to close. All of the existing ash landfills would

be forced to close or bear the additional cost to upgrade

to Subtitle C standards, if that weze possible. Solid waste

landfills would increase. This would further exacerbate an

already short supply of landfill capacity and, in areas such

as Spokane, accelerate the threat to drinking water from

leaking solid waste landfills. This is hardly consistent with

Congress’s expressed policy to encourage energy recovery

from solid waste and minimize solid waste landfills.

The Court of Appeals’ decision could also adversely

affect material separation (i.e., "recycling"). To justify its

interpretation of RCRA, the Court of Appeals relied heavily

1

The difference between the cost per ton for on-site and off-

site ash disposal is primarily due to the cost of transportation.

'2 In the Pac.‘ic Northwest, existing Subtitle C landfills are located

in Montana, Utah, Idaho and Oregon. The cost estimate for disposal

at these facilities does not include the cost of transportation.

‘2 In 1987 EPA recognized the significant cost of disposing of ash

as hazardous waste: “If the ash generated by a municipal waste

combustion facility were to be managed as a hazardous waste, the cost

of managing that ash would be expected to increase substantially.”

EPA, Municipal Waste Combustion Study: Report to Congress, p. 26

(June 1987) (EPA/530-SW-87-021).

Se ne ee ea a

10

upon the fact that incineration changes the physical and

chemical nature of solid waste."

[T]he “garbage” that emerges from the

incineration process

-- ash -- is fundamentally different in its

chemical and physical composition from the

. .. rubbish that goes in. It does not follow

that the generation of . . . a whole new

substance with the characteristic of a

hazardous waste should be exempt from

regulation just because Congress wanted to

spare households and municipalities from a

complicated regulatory system if they |

inadvertently handled hazardous waste. |

Environmental Defense Fund, Inc. v. City of Chicago, 948

F.2d 345, 351 (7th Cir. 1991); Petition for Writ of Cert.,

p. 14a. The Court of Appeals reasoned that household

waste loses its exclusion from Subtitle C once the

chemical and physical nature of the waste changes.

Like incineration, removing paints, solvents, oil,

bottles, cans, batteries, plastic and paper from solid waste

necessarily changes the physical and chemical nature of

that waste. Major new “materials recovery facilities”

(“MRFs") are being built and operated across the country

in an effort to recover valuable materials from the solid

waste stream. Other communities rely on “source

separation,” where the generator (i.e., household or

business) separates usable materials from the solid waste

stream.

Material separation saves money and protects the

environment by reducing the amount of material that must

be landfilled. Separated materials such as newspaper and

aluminum cans replace "virgin" materials such as trees

and aluminum ore. This eliminates secondary

4

There is no question that ash is different chemically and

physically from solid waste. This is a necessary consequence of

liberating the energy stored in garbage to generate electricity or steam.

It is also one reason that the leachate from ash is less of a threat to

ground water than the leachate from solid waste.

11

environmental impacts trom extracting virgin materials. In

some cases material separation produces "refuse-derived

fuel” ("RDF"). RDF is used as fuel at resource recovery

facilities and even in existing industrial boilers and

furnaces in place of or as a supplement to coal or oil.'®

Under the Court of Appeals’ reasoning, all MSW

loses the benefit of any Subtitle C exclusions if the

“chemical and physical composition" of the waste

changes. As a result, the Court of Appeals’ interpretation

of RCRA strips the household waste exclusion not only

from resource recovery residue but also from material

separation residue.

Without a Subtitle C exclusion, residues from any

material separation process must be tested under RCRA

Subtitle C and, depending on test results, stringentiy

managed as “hazardous waste". Suddenly, the cost and

regulatory complexity of managing the waste from MRF,

ROF and other material separation programs, like ash from

resource recovery facilities, become prohibitive. The Court

of Appeals’ interpretation of RCRA discourages material

separation and resource recovery and is inconsistent with

congressional policy.

. 3 Th fA is’ Interpr ion Destr L |

Planning Efforts.

Historically, cities and counties have shouldered

the responsibility for planning and implementing programs

to manage solid waste. Congress recognized this

responsibility in providing technical and __ financial

assistance to local governments, while mandating

minimum federal standards for waste disposal facilities.

42 U.S.C.A. § 6901(a)(4) (West 1983). Local

governments understand local needs, local resources and

local policies. Based in this understanding, they can

identify appropriate disposal and collection systems for

their communities and choose either to implement those

systems themselves or to rely upon private enterprise.

‘* The preamble to the original Subtitle C regulations recognized

that RDF should fall within the household waste exclusion. 45 Fed.

Reg. 3309 (May 19, 1980).

12

RCRA emphasizes that resource recovery should

be considered in developing local plans. 42 U.S.C.A. §8

6943(a)(2), 6947(b) (West 1983). RCRA provides that

resource recovery should be considered a viable alternative

to landfills. See, e.g., 42 U.S.C.A. § 6902(a)(1) (West

Supp. 1991) (federal assistance for planning resource

recovery); § 6942(c)(10) and (11) (West Supp. 1991)

(state plans must consider resource recovery facilities and

markets for energy recovery); § 6943(c) (West Supp.

1991) (federal assistance for studying feasibility of

resource recovery systems); § 6943(d) (West Supp. 1991)

(recycling considered in sizing resource recovery facilities).

In the Pacific Northwest, local governments plan

waste management under state-wide goals and priorities.

Washington’s cities and counties began long-term waste

management planning in the early 1980s. They must

update their plans regularly. Wash. Rev. Code

§ 70.95.110 (1989). Spokane’s journey through local

planning is outlined at pages 1 - 3, above. Spokane’s

experience illustrates how local conditions and policies

shape local waste management decisions. It points out

how recycling and resource recovery are options badly

needed to address the waste management crisis. Finally,

it demonstrates that planning for integrated waste

management requires substantial resources and that

implementing local choices requires long-term contractual

commitments.

Amici Skagit County, Marion County and Tacoma

have made similar journeys. Each community has

different policies and different constraints. Nonetheless,

all of them studied and debated recycling and resource

recovery at the local level and then selected and

implemented local choices. Amici committed to resource

recovery under the belief that RCRA Section 3001(i)

excluded ash from Subtitle C. Their understanding was

based on the language of regulations and statutes and on

court decisions which had, prior to the Court of Appeals’

13

ruling in, this case, uniformly so interpreted Section

3001(i).’

The Court of Appeals’ decision removes resource

recovery as a viable alternative for local governments,

contrary to national policy in RCRA. The cost of

managing ash from resource recovery as hazardous waste

is simply prohibitive.'’ For communities already

implementing resource recovery, the consequences are

potentially disastrous. The results of a decade of solid

waste planning could become _ useless. Long-term

contracts and _ financing commitments could be

jeopardized. Hundreds of millions of dollars of capital

improvements could become too costly to maintain. The

Court of Appeals’ interpretation of RCRA destroys local

planning.

4. The Co f A Is’ _Interpr ion Undercu

Ash n ment Programs.

RCRA allows states to develop and administer their

own solid and hazardous waste programs.'* Consistent

with RCRA’‘s federal framework, several states created

detailed regulatory programs to address management of

ash from MSW resource recovery facilities.

For example, Washington enacted an Incinerator

Ash Residue Act, Wash. Rev. Code ch. 70.138 (1989),

early in 1987. In 1990 Ecology promulgated Special

‘* Environmental Defense Fund, __Inc. Wheelabrator

Technologi nc. 725 F. Supp. 758 (S.D.N.Y. 158), affirmed, 931

F2d 21 Sd Cir. 1, cer genes. 112 S.Ct. 453 (1991); Environmental

Defense Fund, Inc. v . City of Chicago, 727 F. Supp. 419 (N.D. Hil.

1989), reversed, 948 F.2d 345 (7th Cir. 1991).

'’ As explained at pp. 9 - 11, supra, material separation would

also become cost-prohibitive under the Court of Appeals’ reasoning.

‘° By establishing state programs at least as stringent as parallel

federal programs, states may administer the Subtitle C hazardous waste

program, 42 U.S.C.A. §§ 6902(a)(7), 6926(b) (West Supp. 1991),

obtain federal financial assistance for Subtitle D solid waste programs,

42U.S.C.A. §§ 6943(a) (West 1983), 6945(c) (West Supp. 1991), and

6947(a) (West 1983), and administer the federal underground storage

tank regulatory program, 42 U.S.C.A. § 6991c (West Supp. 1991).

14

Incinerator Ash Management Standards, Wash. Admin.

Code ch. 173-306 (1990), to implement the Act. Ash

generators in Washington must develop approved ash

management plans with measures to minimize ash volume

and maintain its quality, as well as to provide for its safe

transport and disposal. Wash. Admin. Code § 173-306-

200 (1990). Ash must be tested quarterly; Ecology

monitors the results. Id. Ash may be disposed of only in

dedicated ash landfills, called monofills, that meet detailed

standards for siting, performance, monitoring, and design.

Wash. Admin. Code §&§ 173-306-350, -450 (1990).

Monofill operators must provide financial security to

assure their facilities’ safe closure. Wash. Admin. Code 8

173-306-470 (1990).

Uncertainty regarding the scope of RCRA Section

3001(i) threatens the viability of Washington’s ash

program. Although developed specifically to address the

characteristics of ash from MSW resource recovery,

Washington’s ash program is not intended to be identical

to Subtitle C requirements for hazardous waste

management. For example, Washington’s ash program

does not require each shipment of ash to be tracked with

manifest documents in triplicate. Compare, Wash. Admin.

Code ch. 173-306 (1990) with 40 CFR § 262.20 (1991).

Other states have programs specifically designed for ash

management that are not identical to the Subtitle C

program.

So long as the Seventh Circuit’s decision remains

in effect, the status of state ash programs is unclear. At

worst, these programs and the resource recovery and ash

landfills designed and built in accordance with their

provisions could be rendered legally obsolete. Supreme

Court review of the Seventh Circuit’s decision is required

to resolve this uncertainty.

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

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

702 (1990); Code Me. R. ch. 403 (1990); Mass. Regs. Code title 310,

§§ 19.119, .131 (1990); Conn. Agencies Regs. §8 22a-209-1, -8, -

14 (1990); N.Y. Comp. Codes R. Regs. title 6, §§ 360-2.14, -3.5

(1991); N.H. Code Admin. R. Dept. Env. Serv. Part Env. Wm 2602

(1991); 25 Pa. Code § 75.37 (1990).

15

CONCLUSION

This Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

PRESTON THORGRIMSON

SHIDLER GATES & ELLIS

By

Craig Steven Trueblood

Attorneys for amici curiae