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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1069%3A5

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1992
- **Citation:** 504 U.S. 906

## Text

, 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1069%3A5. Public record. Not legal advice.