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

LW | BILED

No. 91-1328 , 9 1992

DFFICE OF THE CLERK

In the Supreme Court of the Anited

OCTOBER TERM, 1992

-- >

THE CITY OF CHICAGO, ET AL., PETITIONERS

Vv.

ENVIRONMENTAL DEFENSE FUND, INC., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

KENNETH W. STARR

Solicitor General

Vicki A. O'MEARA

RAYMOND B. LUDWISZEWSKI Acting Assistant Attorney

Acting General Counsel General

LISA K. FRIEDMAN LAWRENCE G. WALLACE

Associate General Counsel Deputy Solicitor General

STEPHEN G. PRESSMAN JEFFREY P. MINEAR

Acting Assistant General Assistant to the Solicitor

Counsel General

THOMAS H. BEISSWENGER DAviD C. SHILTON

Attorney . M. ALICE THURSTON

Environmental Protection Attorneys

Agency Washington, D.C. 20530

Washington, D.C. 20460 (202) 514-2217

QUESTION PRESENTED

Whether Section 3001(1) of the Resource Conservation

and Recovery Act exempts a resource recovery facility’s

municipal waste combustion ash from regulation as a

hazardous waste under Subtitle C of that Act.

(1)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Bowen vy. Georgetown University Hospital, 488 U.S. 204

(1988)

Chevron U.S.A. Inc. vy. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984) ................ 8, 12, 13, 15,

Department of the Treasury v. FLRA, 494 U.S. 922

DT saheusvunduevhesneveekanonbans

Environmental Defense Fund, Inc. v. EPA, 852 F.2d 1316

(D.C. Cir. 1988), cert. denied, 489 U.S. 1011 (1989) .......

Environmental Defense Fund, Inc. v. Wheelabrator Tech-

nologies, Inc.:

931 F.2d 211 (2d Cir.), cert. denied, 112 S. Ct. 4538

a eile da cuaisassiphpesunsnssdishaeseasiasients

Ses Ge, WO CES EPLIN, E. BBO) ......rereseccrrcnsnerserens

Holland vy. First Virginia Banks, Inc., 112 S. Ct. 1152

sa I nr

Loritiard ¥. Pons, 434 U.S. 575 (1978) .............................

Mead Corp. v. Tilley, 490 U.S. 714 (1989) 0.0.0.0... eee

Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Auto

eee ee GUESS... cvcscnnnasnnecncveevevavcsevencens

NLRB vy. Curtin Matheson Scientific, Inc., 494 U.S. 775

Ea ESD SALES Cah Vy eR a Re

NLRB vy. United Food & Commercial Workers Union,

EY ME MP OPE, BEE CRUE) cicccccesscencvrscccecesvevcasercnsesnes

(IIT)

16, 17

IV

C‘ases—Continued: Page

Oberly v. Baltimore & O. R.R., A479 ULS. 980 (1986) 20.0.0... 13

Pauley v. BethEnergy Mines, Inc., 111 S. Ct. 2524

|_| ROC a Deke St eee Ae ee ROE RRS 12, 13, 16, 17

Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633

{SANE Rea Ace ORe Aer RENR OER D Gl Mites 9S AL NOSE 12. 13

Permian Basin Area Rate Cases, 390 U.S. 747 (1968) ..... 17

State Tar Comm'n v. Herzog Bros. Trucking, Inc., 487

icons. Senna TREND ne a ee a eee 13

Sullivan ve Everhart, 494 U.S. 88 (1990) o.....0..00.000.. 12, 13, 15, 17

United States v. Alaska, 112 S. Ct. 1606 (1992) .00000000.... 12, 13, JA

United States v. Gaubert, 111 S. Ct. 1267 (1991) oo... 14

United States v. Shimer, 367 U.S. 374 (A961) ..........0....... 16

Statutes and regulations:

Clean Air Amendments Act of 1990, Pub. L. No. 101-549,

SAE & SOD MIE cilstack vn ch bars Caskhin ch pasaabsdoiuicsnuntecsadcumbancmsanadseuie es 1]

Oy i 1]

Hazardous and Solid Waste Amendments of 1984, Pub. L.

POU. DE-EET, BF EERE. BEE vnicncaccnssevscncesccnszicecpanesane PACER 3

Resource Conservation and Recovery Act of 1976, 42

Fs I A reer cant sct nas rassanatvensiers ]

DPE, Se I RSD goisesn saxty scence cocscaucoacdatatons 15

© TOO ASE), SE USC. COORG) onc vcccceccnccccccscssncsncccsess. 15

be ME Feri I Hecnias aoveaciavcctien.n cca panchsncetccanasaimaesois 2

SIU, Be A te, REGED veccccesssscsssssasiescnasesxonnansas passim

$$ 8001-8018, 42 U.S.C. 6921-6939 (Subtit. C) ....0..... 2, 4, 5, 6,

7, 8, 14, 18

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ee Eg IE ha sp hcsevica i nshisd naanoeencn tn saauuushonniene 2

DS Se SE,” MIE eacaccessoresrcuaneossanbskdenverdiswarwavacs 4

40 C.F.R::

Pt. 261:

Sect iets BEE AEE) CRD vnovin sc cccidcccendcccssacovesagstacce 3, 4

Pt. 262

Miscellaneous: Page

Characterization of Municipal Solid Waste in the United

States: 1992 Update (EPA July 1992) ................. ee. 4

45 Fed. Reg. (1980):

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ih, SEMI - <vstiannssckaniasisivedicanasassouseetuaeuarnabncabionen 2

ce nt or oars ee a eae 9, 15, 16, 17

is I gr aor eee ae 3

50 Fed. Reg. (1985):

1 EEE Scans iencnsnmicacavianeavuyanoneneecaniemneicansberrenetaal 4

SD. A AOD kn cp ecasencorsncnncsintensnneneniiinsiivininmennusennes 9

“AE, SA NEO BBE ON aie Red ss 10

53 Fed. Reg. (1988):

PS ne RRM At Ort ett) nay OIE i

i ee) ot ce 1h dh Sn en il

S. Levy, Municipal Waste Combustion Inventory (EPA

CUE TE i xccestneimnionces soinleetslannsns unseen aeestab enameniiasab 4

Municipal Incinerator Ash: Hearing on H.R. 2517, 4255,

and 4357 Before the Subcomm. on Transportation,

Tourism, and Hazardous Materials of the House

Comm. on Energy and Commerce, 100th Cong., 2d Sess.

RINE . divcxiuusiecinkukashvenseetatadieenabsalblceslademabipeanianhlaaatsietaas 10, 11

Regulation of Municipal Solid Waste Incinerators: Hear-

ings on H.R. 2162 Before the Subcomm. on Transpor-

tation and Hazardous Materials of the House Comm.

on Energy and Commerce, 10Ist Cong., Ist Sess.

CUMD kxcniecséassnsdpinenssckensdeeesanuxapebasthbubas sated saleeaaniaeasss 10-11

Resource Conservation and Recovery Act—Oversight:

Hearings Before the Subcomm. on Hazardous Wastes

and Toxic Substances of the Senate Comm. on Environ-

ment and Public Works, 100th Cong., Ist Sess. (1987) .. 10

S. Rep. No. 284, 98th Cong., Ist Sess. (1983) 0... 16

S. Rep. No. 301, 102d Cong., 2d Sess. (1992) «0.0.0.0... 1]

Jn the Supreme Court of the Guited States

OCTOBER TERM, 1992

_ No. 91-1328

THE CITY OF CHICAGO, ET AL., PETITIONER

v.

IeNVIRONMENTAL DEFENSE FUND, INC., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

This brief is submitted in response to the Court’s or-

der inviting the Solicitor General to express the views of

the United States.

STATEMENT

Petitioners City of Chicago and its mayor operate a

municipal incinerator that burns solid waste and recov-

ers energy, leaving a residue of municipal waste combus-

tion (MWC) ash that is deposited in a landfill. Respon-

dents Environmental Defense Fund, Inc., et al. (EDF)

brought this action against petitioners, alleging that

they were violating provisions of the Resource Conser-

vation and Recovery Act of 1976 (RCRA), 42 U.S.C. 6901

et seq., by failing to dispose of the MWC ash in accord-

(I)

ance with the hazardous waste management require-

ments of RCRA Subtitle C, 42 U.S.C. 6921-6939. The

United States District Court for the Northern District

of Illinois granted summary judgment for petitioners,

ruling that RCRA Section 3001(i), 42 U.S.C. 6921()), ex-

empts the ash residue from Subtitle C regulation. See

Pet. App. 18a-388a. A divided court of appeals reversed.

Id. at la-17a.

1. RCRA is a comprehensive environmental statute

that, among other things, grants the Environmental

Protection Agency (EPA) authority to regulate hazar-

dous wastes from “cradle to grave.” Environmental De-

fense Fund, Ine. v. EPA, 852 F.2d 1316, 1818 (D.C. Cir.

1988), cert. denied, 489 U.S. 1011 (1989). Subtitle C of

RCRA requires EPA to identify and list hazardous

wastes, § 8001, 42 U.S.C. 6921, and to promulgate stand-

ards governing hazardous waste generators and trans-

porters, §§ 8002, 3008, 42 U.S.C. 6922, 6923, and owners

and operators of hazardous waste treatment, storage, and

disposal facilities, § 8004, 42 U.S.C. 6924. EPA has di-

rected hazardous waste generators to comply with han-

dling, recordkeeping, storage, and monitoring require-

ments when they treat, store, or arrange for transporta-

tion or disposal of hazardous waste. See 40 C.F.R. Pt.

262.

In 1980, EPA issued regulations, pursuant to Section

3001 of RCRA, identifying and listing certain solid

wastes as hazardous wastes. See 45 Fed. Reg. 33,084.

Based on the agency’s interpretation of Congress’s in-

tent, EPA excluded various solid wastes that might oth-

erwise be treated as hazardous waste from regulation

under Subtitle C. See id. at 33,096-383,097. EPA specifi-

cally provided a “household waste exclusion,” stating in

relevant part:

ieee

2

»

The following solid wastes are not hazardous wastes:

(1) Household waste, including household waste

that has been collected, transported, stored, treated,

disposed, recovered (e.g., refuse-derived fuel) or

reused. “Household waste” means any waste mate-

rial (including garbage, trash and sanitary wastes

in septic tanks) derived from households (including

single and multiple residences, hotels and motels.)

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

261.4(b)(1) (1982)). See Pet. App. 2la-22a.

Four years later, Congress enacted the Hazardous and

Solid Waste Amendments of 1984, Pub. L. No. 98-616, 98

Stat. 3221, which revised and supplemented RCRA in

various respects. That Act added Section 3001()),

entitled “Clarification of household waste exclusion.” 42

U.S.C. 69210). Section 38001(i) states:

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 —

(1) such facility —

(A) receives and burns only —

(i) household waste (from single and

multiple dwellings, hotels, motels, and other

residential sources), and

(ii) solid waste from commercial or

industrial sources that does not contain

hazardous waste identified or listed under

this section, and

(B) does not accept hazardous wastes identi-

fied or listed under this section, and

(2) the owner or operator of such facility has

established contractual requirements or other

4

appropriate notification or inspection procedures

to assure that hazardous wastes are not received

at or burned in such facility.

42 U.S.C. 6921(1). Shortly thereafter, EPA revised its

regulation containing the “household waste exclusion.”

50 Fed. Reg. 28,702 (1985). KPA retained its original

regulatory language, but added the language of Section

S001) virtually verbatim. See 40 C.F.R. 261.4(b)().

See Pet. App. 22a-25a.

2. Since 1971, petitioner City of Chicago has owned

and operated a resource recovery incinerator, the

Northwest Waste-to-Energy Facility. The facility

burns approximately 350,000 tons of solid waste each

year, amounting to aboat 14% of the City’s solid waste,

and produces energy that is both used within the facility

and sold to other companies. The City disposes of the

combustion residue—110,000 to 140,000 tons of MWC ash

per year—at a landfill in Three Oaks, Michigan. Prior to

this suit, the City, like many other municipalities, did

not manage MWC ash as an RCRA Subtitle C hazardous

waste. Pet. App. la-3a, 19a.!

In 1988, EDF filed a complaint against petitioners un-

der the citizen suit provisions of RCRA, § 7002, 42

U.S.C. 6972, alleging that petitioners were violating

RCRA and EPA’s RCRA regulations governing the

management of hazardous waste. According to EDF, the

MWC ash from the Northwest Waste-to-Knergy Facility

contained sufficient levels of lead and cadmium to subject

the residue to regulation as a hazardous waste under

RCRA Subtitle C. Petitioners responded that RCRA

' As of 1991, approximately 150 facilities incinerated municipal

solid waste in a resource recovery facility. S. Levy, Municipal

Waste Combustion Inventory 1 (EPA July 1992). In 1990, those fa-

cilities burned in aggregate approximately 29.7 million tons of mu-

nicipal solid waste out of an estimated 195.7 million tons generated.

Characterization of Municipal Solid Waste in the United States:

1992 Update 3-2 (EPA July 1992). See also Pet. 2-3.

5

Section 3001(i) excluded the MWC ash from Subtitle C

requirements. The parties filed cross-motions for sum-

mary judgment contesting the application of Section

Ss001(i). Pet. App. 2a-8a, 18a-20a.

EDF claimed that although Section 3001(i) exempted

the City’s incineration of municipal solid waste from

RCRA Subtitle C requirements related to “treating,

storing, disposing of, or otherwise managing hazardous

wastes,” 42 U.S.C. 6921(i), it did not exempt the City

from Subtitle C requirements related to generation of a

distinct waste product, the MWC ash. Petitioners re-

sponded that Section 3001(i)’s reference to “disposing of,

or otherwise managing hazardous wastes” exempted the

entire process of incinerating the waste in a resource

recovery facility, including management of the ash

residue. Pet. App. 3a, 20a, 23a-24a.

The district court agreed with petitioners that RCRA

Section 3001(i) exempts MWC ash produced at resource

recovery facilities from regulation as hazardous waste.

Pet. App. 3a, 20a-28a. The court denied petitioners’ mo-

tion for summary judgment, however, and allowed EDF

to engage in discovery on whether the Chicago facility

adequately met Section 3001(i)’s provisions prohibiting

the facility from accepting commercial and industrial

hazardous wastes. Pet. App. 3a, 28a-29a. EDF subse-

quently stipulated that it would not contest the adequacy

of the facility’s compliance with those prohibitions and

that it would not oppose petitioners’ renewed motion for

summary judgment, which the court granted. See id. at

da-da, 30a-338a.

3. The court of appeals reversed. As a preliminary

matter, the court rejected petitioners’ claim that inter-

vening legislation had rendered the matter moot. Pet.

App. 4da-5a. ‘Turning to the merits, the court observed

that petitioners and EDI both relied on the “plain words

of section 3001” and that “EPA’s interpretation and the

legislative history of the statute do little to resolve this

stand-off.” /d. at Ga-Ta. See id. at Ta-14a (analyzing

~those sources). The court ultimately chose to rely on

“what the statute actually says.” /d. at Ida.

The court reasoned that Section 3001(i) “mentions ‘the

treating, storing, disposing of or otherwise managing’ of

the household and commercial waste, but fails to include

among those activities generating a different waste

product entirely.” Pet. App. Ida. The court examined

the statutory definitions of the quoted terms and deter-

mined that they “exclude ‘generation,’ which is sepa-

rately defined as ‘the act or process of producing haz-

ardous waste.’ 42 U.S.C. 6903(6).” Id. at 15a. It con-

cluded:

There is no overlap whatsoever then between haz-

ardous waste “management” and hazardous waste

“veneration.” It follows, therefore, that if the lan-

guage of the exclusion is limited to “management”

activities of resource recovery facilities, “gen-

erating” activities are subject to regulation.

Id. at 15a-16a. The court accordingly held that “ash

generated from the incinerators of municipal resource

——recevery facilities is subject to regulation as a haz-

ardous waste under Subtitle C of RCRA.” /d. at 16a.

Judge Ripple dissented. He would have affirmed the

judgment for the reasons set forth in Environmental

Defense Fund, Inc. v. Wheelabrator Technologies, Inc.,

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

Cir.), cert. denied, 112 S. Ct. 453 (1991), which held that

MWC ash from resource recovery facilities is exempt

from regulation under Subtitle C. Pet. App. 17a.°

* Because of the apparent conflict with the Wheelabrator deci-

sion, the court of appeals’ opinion was circulated among all active

circuit judges prior to release. No judge requested rehearing en

bane. See Pet. App. la n.*

a |

7

DISCUSSION

Petitioners seek review of the court of appeals’ deter-

mination that MWC ash from resource recovery facili-

ties is subject to regulation as a hazardous waste under

Subtitle C of RCRA. They contend that the cou’ s deci-

sion is incorrect, that it raises an important question of

federal statutory law, and that it is in square conflict

with the Second Circuit’s decision in Environmental

Defense Fund, Inc. v. Wheelabrator Technologies, Inc.,

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

1989), cert. denied, 112 S. Ct. 453 (1991). See Pet. 9-10.

Respondents reply that the court’s decision is correct,

but they agree that the issue is important and a circuit

conflict exits, and they accordingly urge that the

petition for a writ of certiorari should be granted. EDF

Br. 8. In light of recent regulatory developments, we

suggest that the petition should be granted, the decision

vacated, and the case remanded to the court of appeals for

further consideration.

1. As the court of appeals observed, petitioners and

KDE both contend that the plain language of Section

3001) supports the diametrically different interpreta-

tions they advocate. See Pet. App. 6a-7a; Pet. 12; EDF

Br. 14-15. We believe, however, that the statutory lan-

guage is ambiguous with respect to the precise issue

presented here. Section 3001(i) states 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” if certain conditions (including limi-

tations on what wastes the facility “receives and burns”)

are met. 42 U.S.C. 6921(i). But it is unclear from the

_ Statutory text whether “recovering energy from the

mass burning of municipal solid waste” describes the en-

tire recovery process—including disposal of ash

residue-—or something less.

If Congress intended that Section 3001(i) apply to the

entire resource recovery process, the statute would ex-

ee EEO Oe

empt from Subtitle C regulation “treating, storing, dis-

posing of, or otherwise managing” the ash residue. If

Congress intended, however, that Section 3001(i) apply to

some more limited part of the process—such as only the

incineration itself—the statute arguably would not ex-

empt disposal of the incineration residue from Subtitle C

regulation. As the lower courts have acknowledged, the

statutory text is “subject to varying interpretations”

(Pet. App. 12a) and does not provide a definitive answer

to Congress’s intent. See Wheelabrator, 725 F. Supp. at

764. Simply put, Congress has “not directly spoken to”

the precise question presented in this case. Chevron

U.S.A. Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. $37, 842 (1984). In that situation, “considerable

weight should be accorded to an executive department’s

construction of a statutory scheme it is entrusted to ad-

minister.” Chevron, 467 U.S. at 844.*

At the time that the court of appeals considered this

case, EPA’s position on application of Section 38001(i) to

MWC ash was subject to controversy. When EPA pro-

mulgated its 1980 household waste exclusion, it clearly

contemplated that the regulatory exclusion would ex-

empt incineration residue from Subtitle C regulation.

KPA stated in the preamble to that regulation that it

was excluding the entire household waste stream from

regulation, observing:

Since household waste is excluded in all phases of its

management, residues remaining after treatment

(e.y., incineration, thermal treatment) are not sub-

ject to regulation as hazardous waste.

% As this Court has explained, “when an agency is charged with

administering a statute, part of the authority it receives is the

power to give reasonable content to the statute’s textual ambigui-

ties.” Department of the Treasury v. FLRA, 494 U.S. 922, 933

(1990). “That is a task infused with judgment and discretion, re

quiring the ‘accommodation of conflicting policies that were com-

mitted to the agency’s care.’” [bid.

9

45 Fed. Reg. 33,099 (1980). EPA explained that such

wastes, however, “must be transported, stored, treated

and disposed in accord with applicable State and federal

requirements concerning management of solid waste

(including any requirements specified in regulations un-

der Subtitle D of RCRA).” [bid.

Five years later, when EPA amended the household

waste exclusion in response to Congress’s enactment of

Section 3001(i), EPA expressed doubt whether MWC ash

derived from both household and nonhazardous commer-

cial and industrial waste should be excluded. EPA stated

in the preamble to the amended regulation:

The statute is silent as to whether hazardous

residues from burning combined household and non-

household, non-hazardous waste are hazardous waste.

These residues would be hazardous wastes ‘under

present EPA regulations if they exhibited a

characteristic [of hazardous waste]. The legislative

history does not directly address this question,

although the Senate report can be read as

enunciating a general policy of non-regulation of

these resource recovery facilities if they carefully

scrutinize their incoming wastes. On the other hand,

residues from burning could, in theory, exhibit a

characteristic of hazardous waste even if no

hazardous wastes are burned, for example, if toxic

metals become concentrated in the ash. Thus, the

requirement of scrutiny of incoming wastes would

not assure non-hazardousness of the residues.

50 Fed. Reg. 28,725-28,726 (1985). The agency contin-

ued:

KPA believes that the principal purpose of section

3001[i] was to prevent resource recovery facilities

that may inadvertently burn hazardous waste, de-

spite good faith efforts to avoid such a result, from

becoming subject to the Subtitle C regulations. EPA

does not see in this provision an intent to exempt the

10

regulation of incinerator ash from the burning of

non-hazardous waste in resource recovery facilities

if the ash routinely exhibits a characteristic of haz-

ardous waste.

Id. at 28,726. See Pet. App. 26a n.4"

Since 1985, EPA officials have indicated that the

analysis contained in the 1985 regulatory preamble may

be incorrect and have suggested that Congress clarify

its intent.” Congress subsequently included a provision

' EPA also stated, however, that the Hazardous and Solid

Waste Amendments do not “impose new regulatory burdens on

resource recovery facilities that burn household and other non-

hazardous waste, and the Agency has no plans to impose additional

responsibilities on these facilities.” 50 Fed. Reg. 28,726 (1985).

EPA determined that “any additional regulation of their residues

would have to await consideration of the important technical and

policy issues that would be posed in the event serious questions

arose about the residues.” [bid.

’ In 1987, EPA’s Assistant Administrator for the Office of Solid

Waste and Emergency 2esponse stated to a Senate subcommittee

that “[t]he Agency has *eexamined that [1985] interpretation and

now concludes that it may have been in error. The Agency

believes that the language and legislative history of Section 3001(i)

were probably intended to exclude these ash residues from

regulation under Subtitle C.” Resource Conservation and Recovery

Act— Oversight: Hearings Before the Subcomm. on Hazardous

Wastes and Toxic Substances of the Senate Comm. on

Environment and Public Works, 100th Cong., Ist Sess. 427-428

(1987). See Pet. App. 10a-lla, 27a. In 1988, the Administrator

testified to a House subcommittee that “there is ambiguity within

the law and I think the law should be clarified.” Municipal

Incinerator Ash: Hearing on H.R. 2517, 4255, and 4357 Before the

Subcomm. on Transportation, Tourism, and Hazardous Materials

of the House Comm. on Energy and Commerce, 100th Cong., 2d

Sess. 72 (1988). In 1989, EPA’s Director of the Office of Solid Waste

stated to a House subcommittee that EPA continued to follow the

1985 interpretation, but she noted that there is “substantial

controversy surrounding that interpretation,” “the law is

ambiguous given it is silent with regard to treatment of ash under

[Section 3001(i)],"” and “it needs to be clarified.” Regulation of

Municipal Solid Waste Incinerators: Hearings on H.R. 2162 Before

11

in the Clean Air Act Amendments of 1990, Pub. L. No.

101-549, 104 Stat. 2399, stating:

For a period of 2 years [until November 15, 1992] * * *

ash from solid waste incineration units burning

municipal waste shall not be regulated by the Admin-

istrator of the Environmental Protection Agency

pursuant to section 3001 of the Solid Waste Disposal

Act.

§ 306, 104 Stat. 2584. Since enactment of that provision,

however, Congress has taken no action to clarify

whether it intends MWC ash to be exempt permanently

from Subtitle C regulation.®

In light of the considerable uncertainty surrounding

the issue, EPA’s Administrator recently issued a policy

directive to clarify the agency’s interpretation of Sec-

tion 38001(i). See App., vfra, la-10a. The Administra-

tor’s directive, issued to all EPA Regional Administra-

tors and made publicly available, announces EPA’s deci-

sion under Section 3001(i) of RCRA “to treat ash gener-

the Subcomm. on Transportation and Hazardous Materials of the

House Comm. on Energy and Commerce, 101st Cong., Ist Sess. 33

(1989). See Pet. App. lla-12a. See also Wheelabrator, 725 F.

Supp. at 767-768.

® In the past several years, Congress has had before it various

provisions that would clarify how MWC ash should be regulated.

In 1986, Congress considered legislation that would have required

specific standards for facilities disposing of MWC ash. See 53 Fed.

Reg. 33,314, 33,328 (1988). In 1988, a bill was introduced that

would have allowed disposal of MWC ash in certain RCRA Subtitle

D landfills that met additional requirements (the so-called “D

Plus” approach). See Municipal Incinerator Ash: Hearing on

HR. 2517, 4255, and 4357 Before the Subcomm. on Transportation,

Tourism, and Hazardous Materials of the House Comm. on En-

ergy and Commerce, 100th Cong., 2d Sess. 72 (1988). See also Pet.

App. 8a-9a. In its recently concluded Session, Congress considered

a bill that would amend RCRA Subtitle D to establish a separate

regulatory framework for MWC ash. When Congress adjourned,

that provision remained only in the Senate version of the bill. See

S. Rep. No. 301, 102d Cong., 2d Sess. 56-60 (1992).

12

ated from the combustion of nonhazardous municipal

solid waste at resource recovery facilities * * * as ex-

empt from hazardous waste regulation under RCRA

Subtitle C.” App., infra, la-2a. That decision “super-

sedes the Agency’s earlier view of section 3001(i) as not

exempting MWC ash from hazardous waste regulation.”

Id. at 2a.

2. KPA’s decision that Section 3001(i) exempts MWC

ash from RCRA Subtitle C regulation is a significant

regulatory development bearing on the courts’ interpre-

tation of the statute. Under Chevron, a court interpret-

ing a statute administered by an agency must give defer-

ence to the agency’s interpretation if that interpretation

is “reasonable.” Chevron, 467 U.S. at 844. See, e.g.,

United States v. Alaska, 112 S. Ct. 1606, 1610 (1992);

Pauley v. BethEnergy Mines, Inc., 111 S. Ct. 2524, 2534

(1991); Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S.

633, 647-648 (1990); Sullivan v. Everhart, 494 U.S. 83, 88-

89 (1990); Mead Corp. v. Tilley, 490 U.S. 714, 722 (1989).

As this Court has explained, the principle of deference to

administrative interpretations

has been consistently followed by this Court

whenever decision as to the meaning or reach of a

statute has involved reconciling conflicting policies,

and a full understanding of the force of the statutory

policy in the given situation has depended upon more

than ordinary knowledge respecting the matters

subjected to agency regulation.

Chevron, 467 U.S. at 844 (citations omitted).

Chevron’s well-settled analysis applies here. The Ad-

ministrator’s directive expresses the expert agency’s

view on the meaning of an ambiguous provision of a com-

plex statute. As the directive explains, EPA’s decision

attempts to reconcile the text of Section 3001(i), its leg-

islative history, and the underlying policies of RCRA,

which include che goals of protecting the environment

and promoting resource recovery from nonhazardous

13

solid waste. See App., infra, 2a-10a. The directive clari-

fies the agency’s interpretation of Section 3001(i) with

respect to the issue presented in this case. The proper

inquiry now is whether the ageney’s interpretation “is

based on a permissible construction of the statute.”

Chevron, 467 U.S. at 842-8438. See Alaska, 112 S. Ct. at

1610; LTV Corp., 496 U.S. at 648; Mead Corp., 490 U.S. at

722. More precisely, the question is whether the

agency’s interpretation is “reasonable,” Pauley, 111 S.

Ct. at 2537, in the sense that it is “rational and consis-

tent with the statute.” Everhart, 494 U.S. at 89, quoting

NLRB vy. United Food & Commercial Workers Union,

Local 23, 484 U.S. 112, 123 (1987).

3. We suggest that this Court grant the petition for a

writ of certiorari, vacate the judgment, and remand the

case to the court of appeals for further consideration in

light of the Administrator’s policy directive. Although

this Court could itself undertake the Chevron analysis,

the more appropriate course would be to allow the court

of appeals to make that inquiry in the first instance—

particularly because no appellate court has considered

the issue in light of the Administrator’s recent directive.

See, e.g., Holland v. First Virginia Banks, inc., 112 S.

Ct. 1152 (1992) (remanding for further consideration in

light of the Civil Rights Act of 1991); State Tax Comm’n

v. Herzog Bros. Trucking, Inc., 487 U.S. 1212 (1988)

(remanding for further consideration in light of proposed

state regulations); Oberly v. Baltimore & O. R.K., 479

U.S. 980 (1986) (remanding for further consideration in

light of position asserted by the United States as amicus

curiae).

Significantly, the court of appeals did not purport to

engage in a Chevron analysis. That court apparently

concluded that statements contained in the 1980 and 1985

RCRA Federal Register notices and subsequent state-

ments by EPA officials to congressional subcommittees,

see pp. 8-11, supra, failed to articulate an unequivocal

agency position on the matter to which deference could

14

be accorded. See Pet. App. 12a (stating that “[t]he see-

sawing statements from the EPA to which the district

court gave ‘little weight’ deserve no weight at all”). The

Administrator’s policy directive, however, eliminates

any doubt as to the agency’s position on the question

posed here and calls for application of the principles this

Court expressed in Chevron.'

Because the Administrator’s decision is likely to af-

fect this case significantly, it would be appropriate to

remand the case to the court of appeals for further con-

sideration in light of his policy directive. A remand

would facilitate final resolution by allowing the court of

appeals to consider and resolve in the first instance the

parties’ arguments concerning the applicability of

Chevron. If on remand the court of appeals affords

Chevron deference to EPA’s interpretation, the existing

conflict between the Second Circuit’s decision in Wheel-

abrator and the Seventh Circuit’s decision in this case

will be eliminated, thereby obviating the need for further

review by this Court. We believe that outcome is likely,

because under proper application of Chevron principles,

ISP A’s interpretation of Section 3001(i) should be upheld.

The reasons are these.

IXPA’s interpretation of Section 8001(i) is) both

“rational and consistent with the statute.” Hverhart,

494 U.S. at 89. As the Administrator’s directive ex-

plains, Congress enacted Section 3001(i) to clarify EPA’s

1980 household waste exclusion, which exempted house-

hold waste from Subtitle C regulation “in all phases of

its management, [including] residues remaining after

treatment (e.g., incineration, thermal treatment).” 45

* The Administrator’s directive to EPA’s Regional Administra-

tors is a binding interpretation that establishes agency policy and is

therefore a legitimate source for Chevron deference. See Bowen v.

Georgetown University Hospital, 488 U.S. 204, 212 (1988). CF.

Alaska, 112 S. Ct. at 1618-1619, citing United States v. Gaubert,

111 S. Ct. 1267, 1274 (1991) (agencies may establish policy “through

administration of agency programs”).

Fed. Reg. 33,099 (1980). See App., infra, 2a-3a. Section

3001(1) makes clear that when a resource recovery facil-

ity incinerates household waste in combination with

nonhazardous commercial and industrial waste and in

compliance with prescribed requirements, the facility

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

or otherwise managing hazardous wastes.” 42 U.S.C.

6921(i). See App., infra, 38a-4a. In other words, the

household waste exclusion, which exempts household

waste “in all phases of its management” (45 Fed. Reg.

33,099 (1980)), continues to apply when a resource recov-

ery facility commingles household waste with other

nonhazardous waste and treats, stores, disposes of, or

otherwise manages the combined waste streams.

As the Administrator’s directive explains, his inter-

pretation is entirely consistent with the statute. See

App., uufra, 2a-da. Indeed, Section 3001(i)’s express pro-

vision that a qualifying resource recovery facility “shall

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

otherwise managing hazardous wastes” strongly sug-

gests that EPA’s household waste exclusion applies to

all facets of the facility’s operations, including incinera-

tion, pre- and post-incineration storage, and disposal of

residues. The fact that Section 3001(i) fails to state that

the facility shall not be deemed to be “generating” haz-

ardous wastes (see Pet. App. 15a-16a) does not undermine

that conclusion. The absence of that term likely reflects

Congress’s understanding that resource recovery opera-

tions involving conversion of solid waste to energy are

comprehensively described by the collective terms it

used. See RCRA § 1004(7) and (34), 42 U.S.C. 6903(7) and

(34) (defining hazardous waste management and treat-

ment). At most, Congress’s silence on that point high-

lights the fact that Congress has “left a gap for the

agency to fill.” Chevron, 467 U.S. at 843-844. See App.,

infra, 4a n.2.

The Administrator’s interpretation of Section 3001(i)

is especially compelling when the statute is viewed in its

16

legal context. When Congress acted, it presumably was

aware that EPA interpreted the household waste exclu-

sion to apply to such waste “in all phases of its manage-

ment,” including disposal of incineration residues. See

45 Fed. Reg. 33,099 (1989)." Congress did not question or

overrule that interpretation when it clarified that the

household waste exclusion vweéuld apply to a resource re-

covery facility that burns commingled wastes. And to

the extent the legislative history is relevant, it indicates

that, in enacting Section 3001(i), Congress intended to

retain EPA’s interpretation and to apply that interpreta-

tion to such commingled wastes. S. Rep. No. 284, 98th

Cong., Ist Sess. 61 (1983). See App., vefra, da-6a & nn.2-3.

The Administrator’s interpretation also is consistent

with the objectives Congress sought to achieve in enact-

ing Section 8001(i)—protecting the environment and

promoting resource recovery from nonhazardous solid

waste. See App., vufra, Ga-7a. Based on EPA’s scientific

judgment and the safeguards the agency has instituted

in implementing other provisions of RCRA, the Admin-

istrator has determined that those objectives “are best

served by exempting MWC ash from hazardous waste

regulation.” /d. at Ta-8a. That determination rests on

“significant expertise” and “entail[s] the exercise of

judgment grounded in policy concerns.” Pauley, 1115.

Ct. at 2534. “In those circumstances, courts appropri-

ately defer to the agency entrusted by Congress to make

such policy determinations.” Ibid. See Chevron, 467

U.S. at 844-845, quoting United States v. Shimer, 367

U.S. 374, 882 (1961)."

* Cf. Lorillard v. Pons, 434 U.S. 575, 581 (1978) (“where, as

here, Congress adopts a new law incorporating sections of a prior

law, Congress normally can be presumed to have had knowledge of

the interpretation given to the incorporated law, at least insofar as

it affects the new statute”).

“ This Court has stated that as a general matter, “the case for

judicial deference is less compelling with respect to agency posi-

tions that are inconsistent with previously held views.” Pauley,

17

In sum, it is likely that the court of appeals would give

deference to the Administrator’s determination that

MWC ash is exempt from regulation under RCRA Subti-

tle C. If the court of appeals defers to the Administrator,

it will eliminate the circuit conflict and obviate any need

for review by this Court. We therefore suggest that the

Court grant the petition, vacate the judgment, and re-

mand the case to the court of appeals for reconsideration

in light of the Administrator's policy directive.

111 S. Ct. at 2535. In this case, however, the EPA has consistently

recognized that Section 3001(i) is silent or ambiguous with respect

to the issue presented here. See pp. 9-10 & note 5, supra. Thus,

EPA has always acknowledged that there is a statutory gap that

must be filled, and the fact that EPA’s interpretation has evolved

over time is by itself no reason to deny deference. As the Court

has explained, “[aJn initial agency interpretation is not instantly

carved in stone.” Chevron, 467 U.S. at 863. Rather, the agency

“must consider varying interpretations and the wisdom of its pol-

icy on a continuing basis.” Jd. at 863-864. Accord NLRB v.

Curtin Matheson Scientific, Inc., 494 U.S. 775 (1990); Motor Vehi-

cle Mfrs. Ass'n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29,

42 (1983), citing Permian Basin Area Rate Cases, 390 US. 747, 784

(1968). The question for the reviewing court remains whether the

agency's interpretation is “reasonable,” Pauley, W1S. Ct. at 2537,

in the sense that it is “rational and consistent with the statute.”

Everhart, 494 US. at 89.

18

CONCLUSION

The petition for a writ of certiorari should be granted,

the judgment should be vacated, and the case should be

remanded for further consideration in light of the EPA

Adininistrator’s policy directive determining that MWC

ash is exempt from regulation as a hazardous waste un-

der RCRA Subtitle C.

Respectfully submitted.

RAYMOND B. LUDWISZEWSKI

Acting General Counsel

LISA K. FRIEDMAN

Associate General Counsel

STEPHEN G. PRESSMAN

Acting Assistant General

Counsel

THOMAS H. BEISSWENGER

Attorney

Environmental Protection

Agency

OCTOBER 1992

KENNETH W. STARR

Solicitor General

Vick! A. O'MEARA

Acting Assistant Attorney

General

LAWRENCE G. WALLACE

Deputy Solicitor General

JEFFREY P. MINEAR

Assistant to the Solicitor

General

DAVID C. SHILTON

M. ALICE THURSTON

Altorneys

APPENDIX

[SEAL | UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

Washington, D.C. 20460

[Sept. 18, 1992;

The Administrator

MEMORANDUM

TO: All Regional Administrators

SUBJECT: — Exemption for Municipal Waste

Combustion Ash From Hazardous

Waste Regulation Under RCRA

Section 3001(i)

PURPOSE

This Memorandum sets forth the United States

Environmental -Protection Agency’s (“EPA” or

“Agency”) decision under section 3001(i) of the Re-

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

U.S.C. § 6921(i),'to treat ash generated from the

' As part of the Hazardous and Selid Waste Amendments of

1984, Congress amended RCRA by adding section 38001(i),

which provides, in pertinent part:

(i) Clarification of household waste exclusion

A resource recovery facility recovering energy from the

mass burning of municipal solid waste shall not be deemed

to be treating, storing, disposing of, or otherwise managing

hazardous waste for purposes of regulation under [Subtitle

(la)

2a

combustion of nonhazardous municipal solid waste at

resource recovery facilities (hereinafter “MWC ash”)

as exempt from hazardous waste regulation under

RCRA Subtitle C. EPA believes that MWC ash can

be regulated in a manner that will be protective of

human health and the environment under RCRA

Subtitle D. The determination set forth herein

supersedes the Agency’s earlier view of section

3001(i) as not exempting MWC ash from hazardous

waste regulation. See 50 Fed. Reg. 28702, 28725-26

(1985).

ANALYSIS

Text of the Statute

EPA’s determination that MWC ash is exempt from

hazardous waste regulation is consistent with the

text of section 3001(i) As proclaimed by the title of

section 3001(i)—“Clarification of household waste ex-

clusion”—in enacting that provision, Congress was

building upon the regulatory framework it earlier had

established. In enacting RCRA in 1976, Congress in-

dicated that solid waste from households, which fre-

quently includes materials that may contain haz-

ardous constituents, should not be regulated as haz-

ardous waste under Subtitle C. S. Rep. No. 94-988,

94th Cong., 2d Sess. 16 (1976). EPA codified Congress’

intent in the so-called “household waste exclusion,”

(| if. . . such facility. . . receives and burns only. . .

household waste. . .and solid waste from commercial or

industrial sources that does not contain hazardous

waste... .

RCRA section 3001()(1), 42 U.S.C. § 692100). Section 80010)

is codified in EPA’s regulations as part of the household waste

exclusion. 40 C.F.R. 261.4(b)()). f

3a

promulgated in 1980, which provides that “any mate-

rial... derived from households... is not hazardous

waste....” 40 C.F.R. 261.4(b)(1).

In the preamble to the Federal Register notice an-

nouncing the household waste exclusion, EPA clearly

stated that the exclusion extends to ash remaining

after household waste is incinerated: “Since house-

hold waste is excluded in all phases of its manage-

ment, residues after treatment (e.g., incineration,

thermal treatment) are not subject to regulation as

hazardous waste.” 45 Fed. Reg. 33066, 33098

(1980). The Agency justified its determination that

ash derived from the incineration of household waste

is subject to the exclusion on the ground that

Congress intended to “exclude waste streams gener-

ated by consumers at the household level.” Jd.

(emphasis added).

In enacting section 3001(i), Congress arguably ex-

tended the regulatory exclusion for ash derived from

the incineration of household waste to similar

residues generated by resource recovery facilities

from the incineration of household waste and nonhaz-

ardous commercial and industrial solid waste. To the

extend that household waste alone is incinerated, sec-

tion 3001(i) coincides with EPA’s earlier interpreta-

tion of the household waste exclusion as exempting

ash derived from such waste from hazardous waste

regulation. The inclusion in section 3001(i) of non-

hazardous commercial and industrial waste, along

with household waste, suggests that Congress may

have intended that MWC ash resulting from the com-

bustion of those combined wastes also should not be

subject to regulation as a hazardous waste.

In addition, congressional intent to exempt MWC

ash trom hazardous waste regulation is suggested by

the portion of section 3001(i) which provides that a

da

resource recovery facility shall not be deemed to be

“treating, storing disposing of, or otherwise manag-

ing” hazardous waste. (Emphasis added.) Nothing or-

dinarily is “disposed of’ when a resource recovery fa-

cility receives or stores a nonhazardous solid waste,

and the burning of such waste generally is regarded

as a type of treatment under RCRA. See RCRA sec-

tions 1004(3) and (34), 42 U.S.C. § 6903(3) and (34)

(definitions of “disposal” and “treatment”). As a re-

sult, since MWC ash ordinarily is the only waste

“disposed of” by such a facility, Congress arguably

intended that MWC ash not be regarded as a haz-

ardous waste.

For the foregoing reasons, EPA believes that the

text of section 3001(i) is consistent with the Agency’s

determination that MWC ash is exempt from haz-

ardous waste regulation.

Legislative History

IK} PA’s determination that MWC ash is exempt from

hazardous waste regulation also is consistent with

the legislative history of section 3001(i). First, a Re-

port of the Senate Committee on Environmental and

Public Works addressing section 3001(i) specifically

states that “la]ll waste management activities of such

a [resource recovery] facility, including the genera-

tion, transportation, treatment, storage and disposal

of waste shall be covered by the exclusion.”” S. Rep.

* Unlike the legislative history for section 3001(i), the

statute does not expressly state that the “generation” of waste

by a resource recovery facility is included within the exemp-

tion. At most, the absence of that term reflects that Congress

did not expressly address the precise issue of whether MWC

ash should be exempt from hazardous waste regulation, and

does not indicate that Congress intended that MWC ash be

5a

No. 98-284, 98th Cong., Ist Sess. 61 (1983) (emphasis

added).? Since MWC ash ordinarily is the only waste

“generated” by a resource recovery facility,

Congress arguably demonstrated its intent that

MWC ash not be regarded as a hazardous waste.

Second, the Senate Report states that section

3001(i) was enacted to “encourage commercially vi-

able resource recovery facilities and . . . remove

impediments that may hinder their development and

operation.” S. Rep. No. 98-284, 98th Cong., Ist Sess.

61 (1983). As noted above, one of the significant fea-

tures of section 3001(i) is that it applies to resource

recovery facilities that burn both household waste

and nonhazardous commercial and industrial waste.

If section 3001(i) were interpreted as not exempting

MWC ash derived from the incineration of combined

household waste and nonhazardous commercial and

industrial waste from regulation as hazardous waste,

the policy goal stated in the Senate Report could be

substantially frustrated. As a practical matter, the

cost benefit to a resource recovery facility in being

able to burn both household and nonhazardous com-

mercial and industrial waste would be significantly

reduced if MWC ash must be disposed of as a haz-

ardous waste, as discussed more fully below.

regulated as a hazardous waste. In such a circumstance, the

Agency has discretion to adopt a reasonable interpretation that

best serves the goals embodied in section 3001(i). EPA has ex-

ercised that discretion in adopting the interpretation set forth

herein, as discussed more fully below.

3 The Senate Report is entitled to special weight because

the Conference Committee adopted, without change, the Sen-

ate version of section 3001(i). H.R. Rep. No. 98-1133, 98th

Cong., 2d Sess. 106 (1984), reprinted in 1984 U.S. Code Cong. &

Admin. News 5677. In passing the Senate version of section

3001(1), Congress also impliedly adopted the Senate’s interpre-

tation of that provision set forth in the Senate Report.

Oa

Third, the Senate Report refers to the wastes be-

ing incinerated in resource recovery facilities as

“waste streams,” as follows:

Resource recovery facilities often take in

“household wastes” mixed with other non-haz-

ardous waste streams from a variety of sources

other than “households.” . . . New section 3001{i]

clarifies the original intent to include within the

household waste exclusion activities of a resource

recovery facility which recovers energy from the

mass burning of household waste and non-haz-

ardous waste from other sources.

Id. (emphasis added). As noted above, the Agency jus-

tified its determination that ash derived from the in-

cineration of household waste is excluded from haz-

ardous waste regulation on the ground that Congress

intended to “exclude waste streams generated by

consumers at the household level.” 45 Fed. Reg.

33066, 33098 (1980) (emphasis added). In also using the

term “waste stream” in the Senate Report, Congress

arguably demonstrated its intent that section 3001(i)

be construed as extending the household “waste

stream” exclusion to the entire “waste stream” at a

resource recovery facility, including MWC-ash de-

rived from the burning of combined household and

nonhazardous commercial and industrial waste.

In sum, the legislative history of section 3001(i) is

consistent with the Agency’s determination to ex-

empt MWC ash from hazardous waste regulation.

Policy Considerations

As discussed above, EPA believes that the text and

legislative history of section 3001(i) are consistent

with the Agency’s view that MWC ash is exempt from

Ta

hazardous waste regulation. Since Congress did not

in the statute or legislative history expressly ad-

dress the precise issue of whether MWC ash should

be exempt from hazardous waste regulation, the

Agency has discretion to adopt a reasonable interpre-

tation that best serves the goals embodied in section

3001(i). EPA has exercised that discretion in adopting

the interpretation set forth herein. EPA believes

that the two statutory goals embodied in section

3001(i)—protecting the environment and promoting

resource recovery from nonhazardous solid waste—

are best served by exempting MWC ash from haz-

ardous waste regulation.

KPA has determined that MWC ash can be regu-

lated in a manner that will be protective of human

health and the environment under Subtitle D. In par-

ticular, EPA recently promulgated new criteria for

municipal solid waste landfills at 40 C.F.R. Part 258,

56 Fed. Reg. 50978 (1991). Municipal landfills and

monofills receiving MWC ash must comply with those

criteria.’ The Part 258 criteria impose requirements

on municipal landfills that far exceed those

previously imposed, including more stringent loca-

tion restrictions, facility design ar. operating crite-

ria, ground-water monitoring requirements, correc-

tive action requirements, financial assurance re-

quirements, and closure and _ post-closure care

4 In the preamble to the Federal nhegister notice announc-

ing the final Part 258 criteria, EPA stated that “(t]he purpose

of part 258 is to establish minimum national criteria for munic-

ipal solid waste landfills, including [such landfills] used for . . .

disposal of nonhazardous municipal waste combustion (MWC)

ash (whether the ash is co-disposed or disposed of in an ash

monofill).” See also response to comment document nos. 155,

168, 171, 172, and 199 in the public record for the Part 258

rulemaking (docket number F-91-CMLF-FFFFF).

Sa

requirements. The Agency believes the disposal of

MWC ash in municipal landfills subject to the Part

258 criteria will be protective of human health and the

environment.°

If information comes to EPA’s attention suggest-

ing that MWC ash is being managed or disposed of in

a manner that is not protective of human health and

the environment under Subtitle D, the Agency will

consider additional actions, including providing tech-

nical assistance, issuing guidance documents, and, if

appropriate, promulgating additional regulations to

address those situations. In addition, at individual

sites, if the disposal of MWC ash may present an im-

minent and substantial endangerment to human

health or the environment, EPA may require respon-

sible persons to undertake appropriate action under

section 7003(a) of RCRA, 42 U.S.C. § 6973(a).

Resource recovery from municipal solid waste is an

important component of EPA’s integrated waste

management approach, which involves the comple-

mentary use of a variety of practices to safely and ef-

fectively manage municipal solid waste.® Such activ-

5 The promulgation of the Part 258 criteria is an important

step in ensuring that MWC ash can and will be regulated in a

manner that will be protective of human health and the

environment under Subtitle D. The promulgation of those cri-

teria also has served as an impetus for the Agency’s reevalua-

tion of its earlier view of section 3001(i) as not exempting

MWC ash from hazardous waste regulation. 50 Fed. Reg.

28702, 28725-26 (1985).

° That approach establishes a hierarchy that prefers source

reduction (i.e., the design, manufacture, purchase, or use of

materials to reduce the amount or toxicity of solid waste

generated) and recycling (i.e., the process by which materials

are collected and used as raw materials for new products) over

solid waste combustion (including combustion for resource re-

covery) and landfilling. Solid waste combustion, however, has

;

9a

ity advances the statutory objective of RCRA (the

Resource Conservation and Recovery Act) to reduce

the volume of waste that requires disposal. See id. at

section 1002(b)(8), 42 U.S.C. § 6901(b)(8). It also ad-

‘ances the statutory objective of recovering signifi-

cant amounts of energy from solid waste. See id. at

sections 1002(d)(2), 42 U.S.C. § 6901(d)(2), and

1003(a)(11), 42 U.S.C. § 6902(a)(11). For those rea-

sons, EPA agrees with Congress’ view, set forth in

the Senate Report discussed above, that impediments

hindering the development and operation of commer-

cially viable resource recovery facilities should be

eliminated where practicable.

For nonhazardous municipal solid waste that can be

disposed of either in a Subtitle D landfill or com-

busted in a resource recovery facility, the compara-

tive economic desirability of those two alternatives

significantly is impacted by the application of section

3001(i) to MWC ash.’ If MWC ash is not exempt under

30010) from hazardous waste regulation, a strong

economic incentive may exist to dispose of raw mu-

nicipal solid waste in Subtitle D landfills, rather than

combust that waste in resource recovery facilities.

The costs associated with the disposal of MWC ash in

Subtitle C facilities are dramatically higher than in

played and will continue to play an important role in the

Agency’s integrated waste management approach because the

entire solid waste stream cannot be reduced through source

reduction and recycling. EPA encourages communities to

choose the mix of solid waste options that are most appropriate

for them, considering local economic, environmental, and other

factors.

7 In addition to cost, Subtitle D landfill capacity limitations

also may be a significant factor in determining whether

municipal solid waste is combusted in resource recovery facili-

lies.

10a

Subtitle D landfills. Although costs vary signifi-

cantly from region to region, when averaged on a na-

tional basis there is over a ten-fold difference between

the cost of disposal of MWC ash in a Subtitle C facil

ity compared to a Subtitle D landfill: the cost of

transporting and disposing of MWC ash in a Subtitle

C facility is approximately $453.00 per ton; the cost of

doing so in a Subtitle D landfill is approximately

$42.00 per ton. For states that combust substantial

portions of their solid waste (in resource recovery

and other combustion facilities), such as Connecticut

(65%), Massachusetts (47%), and Maine (45%), this

cost differential could be enormous.

CONCLUSION

In sum, exempting MWC ash from hazardous waste

regulation is consistent with the text and legislative

history of section 38001(i), and best serves the statu-

tory goals embodied in that provision of protecting

the environment and promoting resource recovery

from nonhazardous solid waste. For the foregoing

reasons, KPA has determined that MWC ash is ex-

empt from regulation as a hazardous waste under

RCRA Subtitle C.

/s/ William K. Reilly

WILLIAM K. REILLY

cc.

lla

Don T. Clay, Assistant Administrator

Office of Solid Waste and Emergency Response

(OS-100)

Herbert H. Tate, Assistant Administrator

Office of Enforcement (LE-133)

Raymond B. Ludwiszewski, Acting General

Counsel (LE-130)