Petition for Writ of Certiorari — Safe Air for Everyone v. Meyer

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ESSE SS Se pen te

In The

Supreme Court of the Anited States

+

SAFE AIR FOR EVERYONE,

Petitioner,

v.

WAYNE MEYER, et ai.,

Respondents.

4

vv

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

+

PETITION FOR A WRIT OF CERTIORARI

¢

RICHARD J. LAZARUS*

GEORGETOWN UNIVERSITY

LAW CENTER

600 New Jersey Ave., N.W.

Washington, D.C. 20001

(202) 662-9129

JOEL M. GROSS FORD ELSAESSER

ARNOLD & PORTER, LLP ELSAESSER, JARZABEK,

555 Twelfth St., N.W. ANDERSON, MARKS, ELLIOTT

Washington, D.C. 20004 & McHuGu, CHTD.

(202) 942-5000 123 S. Third Avenue

Sandpoint, ID 83864

(208) 263-0759

Counsel for Petitioner

*Counsel of Record

QUESTION PRESENTED

The Resource Conservation and Recovery Act (RCRA), 42

U.S.C. §§ 6901 et seq., establishes a federal program for the

regulation of solid and hazardous wastes designed to

protect human health and the environment. Petitioner

alleged in its complaint that open field burning by

neighboring farmers of massive amounts of Lear haber

crop residue was presenting an imminent and substantial

endangerment to human health that was actionable under

RCRA because the crop residue constituted a “solid

waste,” which RCRA statutorily defines as “discarded

material,” ree Tia material from “agricultural

operations.” 42 U.S.C. § 6903(27). The court of appeals

held that the complaint should be dismissed on the ground

that the crop residue was not “discarded material” even if

99.9 percent of the reason for the burning was to get rid of

it because the material would otherwise harm crop

productivity.

The question presented is whether secondary material

generated by an industrial, manufacturing, agricultural, or

commercial activity is not “discarded” and therefore not

“solid waste” subject to RCRA, whenever the generator

can establish that destroying the material results in some

incidental economic benefit in addition to the overridin

and primary benefit of simply getting rid of the material.

(i)

PARTIES TO THE PROCEEDING

Safe Air for Everyone, also known as the Idaho Clean Air

Foundation, Inc., was the me ellant in the Ninth Circuit

below. Wayne Meyer, William Dole, Michael Dole,

Warren Dole, Jacquot Farms Enterprises, Inc., G. Wade

McClean, Terry Nichols, Satchwell Farms, Inc., Wallace

Meyer, David Asher, Terrell K. Baune, Baune Farms, Inc.,

Jeff Bloomsberg, Bergen Bothman, Arnold Brincken, Doug

Bruce, Earl M. Clausen, Clausen Farms, Inc., Keith Daman,

Paul Daman, Denny Bros., Chad Denny, Matthew

Drechsel, Drechsel Brothers, Inc., Dennis Duncan, David

Duncan, Chris Duncan, Joyce Duncan, Randy Duncan,

David Fish, Thomas Freeburg, Gary French, les A.

Hahner, Hahner Farms, Inc., Larry Hansen, Martin

Hanson, Hatter Creek Farms, Inc., Don Hay, Larry Heaton,

Clarence Heeg, Randy Holt, Duane Jenneskens, Dale R.

Johnson, Ted Lacy, Phillip Lampert, Lampert Farms and

Ranch, Inc., David Lampert, Eric Larson, Brian Lashaw,

Mike Lashaw, Nick Lawson, Casey Lawson, Allen Lewis,

Maple Leaf Farms, Inc., Herbert W. Millhorn, Millhorn

Farms, Inc., Bruce Mills, Catherine Morris, Richard

Morrison, Elmer Ness, Erling Place, Chris R. Ramsey,

Michael Roecks, Rogada Farms, Inc., John Schultz, Karl

Schultz, Joe Sievers, fos Tee, Donald Thies, Alan Thomas,

Gene Towne, Winday Hill Farms, Inc., Todd E. Wright,

Gary Wright, Wrights, Inc. were all appellees in the Ninth

Circuit below.

(ii)

TABLE OF CONTENTS

Page

Question Presented ...........-eeeeeee eee eeeeeeees i

Parties to the Proceedings ........--++++++eeeereees ii

Opinions Below ........---eeeeeeeeeeeeeseseecees 1

Jurisdiction ........... cece cece cere ence eeeeeeeces 1

Statutory Provisions Involved ........-+++++++++++: 2

Statement ......... cece ccccccccccccceeeeeecees 2

Reasons for Granting the Writ ......---++-+++++++> 12

I. The Ninth Circuit misconstrued the meaning of

RCRA’s statutory definition of “solid waste” ... 14

II. The Ninth Circuit’s ruling seriously erodes RCRA’s

effectiveness in protecting human health and the

environment ........-:0eeee cece eee eee teeees 20

Ill. The Ninth Circuit's ruling conflicts with the rulings

of other federal courts of appeals that have construed

the same statutory language ..........-++-+-+-: 25

IV. Review by this Court of the legal issue presented by

this case is warranted now 28

CR 8 ccc ccscanncceduns cevedeveduewres

Appendices ...........eeeeeeeeeeeeeeceeeeeeees

(iii)

TABLE OF AUTHORITIES

Cases:

American Mining Congress v. EPA,

SOR 2G TA77 COA. CAR, TG) aicescccsccnesenisansccnanssenacs 21, 27, 28

American Mining Congress v. EPA,

SOT FA BETS CA. Ce, TG) scsresnssccccessrncsntnsssnancss 26, 28

American Petroleum Institute v. EPA,

FOS FG TEP CK, COR, TID cetetninsccnciciconsctnsnsenesitsnsetins 26

American Petroleum Institute v. EPA,

See Fe re Ras (AE, TIPU Hsrinieitisctniianensninaincnnnsitnianniit 25

Association of Battery Recyclers, Inc. v. EPA,

Be SG TOG CK. Ga, TI seerctccnescsesnstncensinsesionns 28

Board of Education v. Earls, 536 U.S. 822 (2002) ...... 8, 29

Chemical Waste Management v. Hunt,

A CF TRO CUD scereinntstsnsininitnsiitnisinesscnihiciciinisnnidinaiecanatan 3

of Chicago v. Environmental Defense Fund,

CS FER CRIED. cnssenslinitpusinitnentnnteceicincineannssiianieadiaatiosee 30

City of Chicago v. Environmental Defense Fund,

OE Aas SND CUA ccciinsitnnsntiistnistifaitnsisttinnabincnisimcsbaniatsniniiaiinn 3, 4

Comite Pro Rescate de la Salud v. Puerto Rico Aqueduct

& Sewer Auth., 888 F.2d 180 (1st Cir. 1989) ............ 20, 22

Connecticut Coastal Fisherman’s Ass’n v. Remington

Arms, 909 F.2d 1305 (2d Cir. 1995) ............c.cecsssscsese 19, 21

Engine Manufacturers Ass’n v. South Coast Air pace,

Management Dist., 541 U.S. 246 (2004) oe eeeeeeeees

International Paper Co. v. Ouellette,

FF SEB: Re CFSE tictecinitaiiisencsindpvntsaiacnideenbannsnstentbities 30

(iv)

Cases (continued):

Meghrig v. KFC Western, 516 U.S. 479 (1996) ..........00+ 3

Moon v. North Idaho Farmers Ass’n,

96 PDE GBT CIO TIED ssceicsecnacsenssncesasiseisasiiascnsingsnasicnes 24

Owen Electric Steel Co. of South Carolina v. Browner,

ST BSE TOG COU CBr. TOG) wccscscscscsnssnancesincscstnaneaninstnansas 26

Safe Food & Fertilizer v. EPA,

SEO FSG TAGS COL. Ces, MID) carcensienssriccssenssnnsnnsosnmnsntisn 28

United States v. ILCO, Inc.,

DOG BD TUDG C11 Cae, TTD) ascscdcicscccssiscesiescncnlaonisiapaas 25

United States v. Marine Shale Processors,

Si PSG USGS CK, Cie, DIGG) ccetesinteriniassieisinntiinscorinnasiat 26

United States v. Self,

2 FBG WATS CIO Clr. GTS) cecnteinsasccsinsascnsshinctiscsiabenih 27

Statutes and Regulations:

Clean Air Act, 42 U.S.C. §§ 7401 et Se. ......scsessssereeres 3, 23, 24

Clean Water Act, 33 U.S.C. §§ 1251 et Seq. ........ssccssssseseees 3,23

Idaho Smoke Management and Crop Residue Disposal

Act, Idaho Code §§ 22-4801 to 22-4804 000... eeeeseeeeees 15

Idaho Code § 22-4803(a) ............scsscsssscssssssssesssssseesess 15

Idaho Code § 22-4803A(6) ............scssssssssssssrssessessesees 24

Resource Conservation and Recovery Act (RCRA),

42 USC. § GFO1 6 B06, acccscrcsinsncosesssaseesciendescssnsnsoasonans passim

M2 USK § GID ssscctscrnsctscceen ccenicacpinciaiieiial 17

42 US, § CIGD) ncorasannuciiinratsivensnsincsiteviiiiiansmnicianiililaih 4

Statutes and Regulations (continued):

USC. (ORG .o Gi 2, 4, 23

€USC. $000 ieee 17

UG: COI scissile 5, 23

2 USC. § GRR ...nnnitsniieicdeee 23

@USC. § CUMS ob chiiniibel eas 23

UBL. CIE cccinisiecemnnnnn 7,10, 19, 21, 25

42 U.S.C. § 6972(a)(1)(B) sesessssscccsscssssssssesessesssee 2, 7, 24

42 UBC. § QUOD sccictnicieicentnceglecne 24

CO CPR. 06 208.5 < BORA viicesiccnsncmntinesimpmniiaata 5, 6,18

AO C.F.R.§261.1(0)(1) ceccssccsssccccccssccsccsssssssesnsseceee 5,19, 22

CDCI OBTAIN oivisisiinicieccbeioibimaiaaliag 20

OCB TG WN DI i eccscinsesanecndenmcinil '

4.0 C.F.R. § 261.2(a)(2)(i) sooccsssssssnscsssssssessscssssessenssesseseen 19

GDC PIR CBOE NO casescssisssscscsiecancatitcseetieabaat 6,19

QO CER. 6 B00 DAIS co cainsecmecsvssininssintiinalitcllatetagl

4.0 C.F.R. § 261.2(C)(1)(i) «.ssssssssssssnnccccccceccescsssssssnnsssnenees 6

4.0 C.F.R. § 261.2(C)(2)(i)(B) seeccssccssccsccccccsssesssssssssseeeee 6,20

4.0 C.F.R. § 261.2(C)(2)( fi) sssssscsscccccccccceccccecessessseeseeeeeee 6

CIPI GDI DD viceccieiecisencecessceiceoneee n

4.0 C.F.R. § 261.4(b)(2)(1) cesscssssoscccccssssnsscececesesssnssseseceee 17

(vi)

Statutes and Regulations (continued):

ID Admin. Code, Tit. 6, Ch. 16, § 500 .......cccccssccsseseseesees 15

Miscellaneous:

eg aa siaRiintaNeaishet et ng ”

(Perseus Pub. 2000) ne es omchpoinn®

The Coasters, Yakety Yak, on The Very Best of the

Coasters (Rhino Records 1994) .........cccccccsssssesessesssseseeeee 15

GE ROR, TG, BOGE OD ensicininctnticisttiinciainbiaigee cos 6, 22

I. DP iiccinnnsccintsiniaditccadetiatiadianliaittatibislinidaiadaimeee 22

SR TI cetetactninajpntaivinistcieerisbttbilasitilarmssstinishindedhaaniilatiaticaac 6

Pe FOG. Thay, GEG (RSID) ancccacssccesesecsescisnenttscnscsistinin 5, 19, 21

lr NS a ERIC RETREATS shan = | 22

PR GD © csctassctncitsiccinniiiiichnlncitchibasabinaicipiicetaplaee egal 5

Ps ID cressssvinssssnttciiepscitentiiclnipstacecatinsninheisougiaeiicintetcecaal 19

GED siestinitntasinisiitinianliiieisisdseabsicabints iain ate 5,19

i TN RO re 22

GB Fed. Reg. GISSB (2005) nnccscccceccacssccssssscecsrsasessees 5, 6, 19

Spe scapinnsiasiitiiiinihbiebleitiaeagaitiaiadiitaniatlain tia 6,20

Ph I -cnassevinshctncinensnigdcsiicthipeietamniiiaipitaineadiadeaatiiie 5, 19

Oe, BE, COM, BR, TI oincovscosadutnrieoietaditaietca aia 10

(vii)

Miscellaneous (continued):

H.R. Rep. No. 94-1491, 94th Cong., 2d Sess. (1976) ..... 3, 12

H.R. Rep. No. 98-198, 98th Cong., 2d Sess. (1984) ........ 6, 24

Jan G. Laitos & Celia oe oe mn The Regulation

of Toxic Substances and Hazardous Wastes (2000) ....... 5

Donald G. McNeil, Upstate Waste Site May Endanger

Lian, NEVE ABE (Aaam, 1, TS7GD sccincccnnincsncsnsnssssnsasnannosnsste 12

Jeffrey G. Miller & Craig N. Johnston,

The Law of Hazardous Waste Disposal and

TOR. CIO sensnnnicisaiicconntniicaivinninitnianintaicnnibanintin 3, 5

Oxford English Dictionary (2d ed. 1989) ..........scscesesee 15

Random House Webster’s Unabridged Dictionary

CARN Gs RPO D cxeinistnininsiisninsiesanintncingeeaiaiapsininiestaintttiitbbidenins 15

Robert Reinhold, U.S. Offers to Buy All Homes in Town

Tainted by Dioxin, NYT A1:6 (Feb. 23, 1983) ..........:0000+ 12

Richard B. Skaff, Emergency Provisions in the

Environmental Protection Statutes: A Suggestion al a

Unified Emergency Provision, 3 Harv. Envt'l L. Rev. 298

ERDT DP coniscmnpininlplaninabnninnesnnintnheaediaiicinsnlianisinsbaaiintetnnitint 24

(viii)

In the

Supreme Court of the United States

No. 04-

SAFE AIR FOR EVERYONE,

Petitioner,

Vv.

WAYNE MEYER, et al.,

Respondents.

On Petition for a Writ of Certiorari to

the United States Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioner Safe Air for Everyone respectfully petitions this

Court for a writ of certiorari to review the ju ry BE of the

United States Court of Appeals for the Ninth Circuit in this

case.

OPINIONS BELOW

The opinion of the Ninth Circuit is reported at 373 F.3d

1035 and reproduced in the appendix hereto at Pet. App.

A1. The opinion of the district court is unreported and is

reproduced at Pet. App. A32.

JURISDICTION

The judgment of the Ninth Circuit was entered on July

1, 2004: Pet. App. A1. The Ninth Circuit denied rehearin

and rehearing en banc on October 5, 2004. Pet. App. A49.

On December 22, 2004, Justice O’Connor extended the

time within which to file a petition for a writ of certiorari

to and included February 2, 2005. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1). '

2

STATUTORY PROVISIONS INVOLVED

Sections 1004(3), (5), (27), & (34) and 7002(a)(1)(B) of

the Resource Conservation and Recovery Act, codified at

42 US.C. §§ 6903(3), (5), (27), & (34), 6972(a)(1)(B) are

reproduced at Pet. App. A50.

STATEMENT

This case arises out of an action brought by petitioner,

Safe Air for Everyone (SAFE), pursuant to Section

7002(a)(1)(B) of the Resource Conservation and Recovery

Act (RCRA), 42 U.S.C. § 6972(a)(1)(B), alleging that

respondents’ burning of massive amounts of crop grass

residue presents an “imminent and_ substantial

endangerment,” within the meaning of that statutory

provision, and seeking injunctive relief. The district court

dismissed the complaint on the ground that RCRA does

not apply to respondents’ activities because the burning of

grass residue does not constitute a “disposal” of a “solid

waste.” A divided panel of the court of appeals affirmed,

ruling that summary judgment in favor of respondents

was proper. According to the appellate court, the grass

residue is not a “discarded material,” which is the RCRA

statutory definition of “solid waste” (42 U.S.C. § 6903(27)),

even if 99.9 percent of the reason for the burning is to get

rid of the material so that the material does not harm cro

productivity. Neither lower court disputed petitioner's

evidence that respondents’ burning of residue causes

severe and widespread adverse human health effects,

including the deaths of three residents and multiple

hospitalizations of others.

Review of the Ninth Circuit’s judgment is warranted.

The court's reasoning is contrary to the plain meaning of

the statutory language, ignores EPA’s authoritative

interpretation of that language, and threatens to create an

extraordinarily broad “recycling” loophole that would

allow easy circumvention of RCRA’s important human

health and environmental protections. The case also

presents a wide and deep conflict in the federal circuit

courts of appeals.

3

A. The Resource Conservation and Recovery Act.

The Resource Conservation and Recovery Act (RCRA)

“is a comprehensive environmental statute that governs

the treatment, storage, and disposal of solid and

hazardous waste.” Meghrig v. KFC Western, 516 U.S. 479,

483 (1996); see City of Chicago v. Environmental Defense

Fund, 511 U.S. 328, 331 (1994). RCRA was part of the

second wave of the nation’s modern environmental law

statutes. The first wave, consisting of the Clean Air Act, 42

U.S.C. §§ 7401 et seg. and the Clean Water Act, 33 U.S.C. §§

1251 et seq., ser se to achieve environmental protection by

focusing on pollutants emitted into specific environmental

media (i.e., air and water). Congress passed RCRA in 1976

largely because of its increasing concern that an

exclusively media-based approach would ultimately just

shift pollutants to the path of least regulatory resistance, in

particular to contaminate land and groundwater See

Jeffrey G. Miller & Craig N. Johnston, The Law of

Hazardous Waste Disposal and Remediation 2-3 (1996).

That is why Congress intended that the purpose of RCRA

would be to eliminate the “last remaining loophole in

environmental law” by focusing on risks caused by waste

management regardless of environmental media. H.R.

Rep. No. 94-1491, 94" Cong., 2d Sess. Pt. 1, at 4 (1976).

To that end, Congress authorized EPA in RCRA to

regulate the management of solid and hazardous wastes

from “cradle to grave.” Chemical Waste Management v.

Hunt, 504 U.S. 334, 337 n.1 (1992). RCRA’s central

jurisdictional term is “solid waste.” While the Act imposes

its “much more stringent” regulatory requirements on

those who treat, store and dispose of “hazardous waste”

rather than on those who manage “solid waste” (see City

of Chicago v. Environmental Defense Fund, 511 U.S. at

332, 339), “hazardous waste” is a subset of “solid waste.”

In other words, unless a material is “solid waste” in the

first instance, it cannot be considered “hazardous waste”

within the meaning of RCRA.’ The material falls wholly

The term “hazardous waste” means a solid waste, or combination

of solid wastes, which because of its quantity, concentration, or

hysical, chemical, or infectious characteristics may -

(A) cause, or significantly contribute to an increase in mortality

iinet

4

outside of RCRA in all respects.

Congress, accordingly, broadly defined “solid waste”

in RCRA to mean “any garbage, refuse, sludge * * * and

other discarded material * * * resulting from industrial,

commercial, mining, and agricultural operations ** *.” 42

U.S.C. § 6903(27) (emphasis added).* The statutory

touchstone for “solid waste,” therefore, turns on whether

the secondary material (i.e., any material generated by

“industrial, commercial, mining, and agricultural

operations”) is “discarded.” Significantly, secondary

material generated by agricultural activities is expressly

included, not excluded, from the statutory definition.

RCRA, however, does have “twin goals,” both of which

are relevant in determining the meaning of “discarded

material.” City of Chicago v. Environmental Defense

Fund, 511 US. at 339. As suggested by its name, RCRA

seeks both to “encourag|[e] resource recovery and protect[]

— against contamination.” Id. Yet, these two goals

“sometimes conflict.” Id. Within the administration of

RCRA, for instance, exempting all recycling of secondary

materials from RCRA’s regulatory requirements would

certainly promote such resource recovery efforts. But the

concomitant cost would be the failure to regulate the

health and environmental risks created by those activities,

many of which, especially burning and placement on land,

present the same kind and degree of risk created by classic

waste disposal and treatment activities such as

or an increase in serious irreversible, or incapacitating reversible,

illness; or

(B) pose a substantial present or potential hazard to human

health or the environment when improperly treated, stored,

transported, or disposed of, or otherwise managed.

42 U.S.C. § 6903(5) (emphasis added).

? The term “solid waste” means any garbage, refuse, sludge from a

waste treatment plant, water supply treatment plant, or air

pollution control facility and other discarded material, including

solid, a ane semisolid, or contained gaseous material resulting

from industrial, commercial, mining, and agricultural operations

zkx*

42 US.C. § 6903(27).

5

incineration and landfill. See Miller & Johnston, supra, at

3; Jan G. Laitos & Celia Campbell-Mohn, The oe aan

of Toxic Substances and Hazardous Wastes 683 (2000).

Congress never delineates precisely in RCRA how the

balance should be struck between these two goals.

Congress, however, does make clear that material is not

generally exempt from the meaning of “solid waste”

simpl ause it is being we oH In 1984, Congress

added a provision requiring RCRA regulation of small

volume generators of hazardous waste. See 42 U.S.C. §

6921(d). That specific provision commands EPA to

establish hazardous waste management standards for

small volume generators “sufficient to protect human

health and the environment,” including “standards

applicable to the legitimate use, reuse, recycling, and

reclamation of such wastes.” Id.

EPA, charged by Congress with implementation of

RCRA, has not promulgated regulations purporting to

define the meaning of “solid waste” or “discarded

material” as applied to recycling activities for the statute

as a whole. The Agency has instead promulgated

regulations that address the meaning of the statutory

definition of solid waste as applied to recycling only for

the purposes of administration of RCRA’s hazardous

waste program set forth in RCRA Subchapter C. 40 C.F.R.

§ 261.1(b)(1). EPA has consistently maintained that the

statutory definition of “solid waste” applicable outside the

context of Subchapter C is broader than the regulatory

definition applicable only to hazardous wastes. See 50

Fed. Reg. 614, 627 (1985); 68 Fed. Reg. 61558, 61562 (2003).

In 1985, EPA first promulgated its detailed regulations

addressing the meaning of solid waste as applied to

recycling activities potentially subject to regulation under

RCRA‘s Subchapter C hazardous waste management

program. 50 Fed. Reg. 614 i see 40 C.F.R. §§ 261.1 -

261.4. The Agency rejected the extreme positions of either

exempting all recyclable materials from the meaning of

solid wastes or including them all. 50 Fed. Reg. at 617.

The Agency concluded that it would “ordinarily have

jurisdiction to regulate most recycling activities” because

“regulation of most of these activities is necessary _to

kk a aa rea uni

6

protect human health and the environment.” Id. EPA

explained that it was “guided by the principle that the

paramount and overriding statutory objective of RCRA is

protection of human health and the environment. The

statutory policy of encouraging recycling is secondary and

must give way if it is in conflict with the principal

objective.” Id. at 618, citing 48 Fed. Reg. 14472, 14492 (1983)

and H.R. Rep. No. 98-198, 98" Cong., 1* Sess., at 46 (1983).

EPA, accordingly, defined in its regulations two broad

categories of recyclable secondary materials: “those that

are classified as solid wastes when recycled, and are

therefore subject to regulation under RCRA, and those that

are not considered solid wastes when they are recycled,

and thus are not regulated.” 68 Fed. Reg. 61558, 61561

(2003). The dividing line for the Agency was between

those recycling practices that the Agency considered “to be

more akin to normal industrial production” and those

recycling practices that bore “more resemblance to waste

management” and therefore presented heightened health

and environmental risks. Id.; see 50 Fed. Reg. at 616-618.

Although the resulting regulations draw a series of

extremely technical and precise distinctions in their

application to specific industries and industrial practices

(see 40 C.F.R. §§ 261.1 to 261.4), the Agency broadly

classified certain kinds of activities, including certain

recycling activities, as warranting the conclusion that the

secondary materials involved were being “discarded” and

therefore constituted “solid wastes.” Of particular

relevance to this case, EPA concluded that material that is

“abandoned” by being “burned or incinerated” is

discarded material. 40 C.F.R. § 261.2(a)(2), (b)(2). In

addition, secondary material that is “recycled” either by

being “used in a manner constituting disposal,” such as

placement on land, or “used to produce a fuel,” constitutes

discarded material. Id. § 261.2(c)(1), (c)2)(i)(B).°

° EPA’s regulations included a few isolated exceptions for certain

“commercial chemical products” specifically listed in its regulations,

but those exceptions are not relevant to this case. See 40 CER §

261.2(c)(1)(ii), (c)(2)(ii); see id. § 261.33.

B. Proceedings Below

1. On May 31, 2002, petitioner, Safe Air for Everyone

(SAFE), filed this action against respondents in the United

States District Court for the District of Idaho pursuant to

Section 7002(a)(1)(B) of RCRA, 42 U.S.C. § 6972(a)(1)(B).

That statutory provision allows citizens to file suit against

any person “who has contributed or who is contributing to

the past or present handling, storage, treatment,

transportation, or disposal of any solid or hazardous waste

which may present an imminent and_ substantial

endangerment to health or the environment.” Id. SAFE is

a non-profit corporation, led by physicians concerned

about the serious, adverse health effects of grass residue

burning, formed for the sole purpose of taking action with

respect to the health crisis that its members believe is rag

caused by grass residue burning. Respondents are 7

individuals and corporations that grow Kentucky

bluegrass seed commercially in North Idaho and, after

harvesting the seed, burn the grass residue that remains on

the field. The burning takes place in two general areas:

within the Rathdrum Prairie in Kootenai County, Idaho,

and within the boundaries of the Coeur d'Alene

Reservation. SAFE alleged in its complaint that the smoke

and particulate pollution created by the massive open field

burning has contributed to an imminent and substantial

endangerment to public health in Idaho and Washington.

Pet. App. A35; E.R. 1-29. )

SAFE moved for a preliminary injunction on its RCRA

Section 7002 claim, supported by an extensive evidentiary

submission of 121 fact and expert declarations and also by

expert and witness testimony at a 7 injunction

hearing. This evidentiary submission and testimony

addressed both the nature of respondents’ disposal

pores through burning and the resulting severe public

ealth impact on surrounding communities. Pet. App. A2-

A3; E.R. 58-194, 195, 198-205, 208-222, 226-235.°

* “E.R.” refers to Excerpts from the Record in Support of Plaintiffs-

Appellants filed in the court of appeals.

° Because the court below upheld dismissal of the complaint on

summary judgment, the evidence submitted must be viewed in the

8

Farmers typically plant Kentucky bluegrass in the

spring, but the crop does not flower and ee seed

until the following year. By the summer of that next year,

the flowers have produced seed, and the grass plants are

15 to 36 inches tall. Growers, such as respondents, then

cut the crop close to the ground, normally several inches

high. The cut portion of the plant cures in the field for

several weeks, which dries out the seed heads in

preparation for combining. Pet. App. A2, A14.

After the bluegrass straw is cured, a combine separates

the seed from the straw, then deposits the seed into a bin

and places the straw back onto the field. The growers

must remove this grass residue from the field at a later

time. Otherwise, bluegrass, a perennial crop that can

- produce seed for several years from a single planting, will

not effectively produce seed in the following years. If left

on the field, the residue will keep sunlight and moisture

from reaching the crown of the plant during the critical fall

re-growth period. Pet. App. A29 n.9; see note 6, infra.

Respondents all get rid of the residue by open field

burning, which is the most inexpensive method of residue

removal. Ridding the field of the grass residue to allow

for sunlight and moisture to reach the soil underneath is

99.9 percent of the reason for its removal.° The fire also

eliminates some insects and pesticide residue and molds

that would otherwise find food and shelter in the crop

grass residue. The ash remaining after the fire can contain

some small amounts of organic matter, including nitrogen,

valuable to the farmer as a fertilizer for the soil. Pet. App.

A13-A15; E.R. 223.

light most favorable to the petitioner, as the non-moving party. See

Board of Education v. Earls, 536 U.S. 822, 849 (2002).

° As the court of appeals noted (Pet. App. 14 n.11), one witness,

Donald Jacklin, testified that “99.9 percent” of the reason for burning

the residue was the “ photo induction enhancement of seed yield.” E.R.

223; Pet. App. A58-A59. Jacklin further explained that the photo

induction enhancement occurs because burning “rids the surface” of

the grass residue and the increased seed yield then occurs because the

bare soil is exposed to the sunlight for a longer period of time. Id.

fence it is exclusively the residue’s removal that produces this

e relevant testimony is set forth at Pet. App. A58-A59.

benefit.

9

Respondents engage in open field burning of grass

residue on a seasonal basis on over 7000 acres on the

Rathdrum Prairie and on over 30,000 acres within the

Coeur d’Alene Reservation. The burning produces

massive clouds of smoke containing high concentrations

of pollutants, including particulate matter, that cause

severe adverse human health impacts. Pet. App. A2; E.R.

58-130. The State of Washington has, due to these adverse

health effects, completely banned such burning and the

State of Oregon has mostly banned the practice. Farmers

in those States comply by removing the grass residue

mechanically. See Pet. App. A13, A41 & n.4; E.R. 218.

Petitioner's complaint alleged, and its detailed

evidentiary submission and hearing testimony established,

that the smoke plumes from the burning reach residential

communities’ and that the resulting serious and

widespread health effects include increased coughing,

respiratory illness, difficulty breathing, decrease lung

function, and lung disease. The evidence further

demonstrated that Fealth effects are greater for infants,

children and the elderly, asthmatics, and those with

chronic heart or lung disease. Underscoring the potential

severity of these impacts, petitioner's submission

established that three North Idaho citizens have died in

recent years from episodes of acute respiratory distress

precipitated by grass residue burning and that many other

citizens have had adverse reactions to the burning so

severe that they could have died without immediate

medical attention. SAFE also submitted one hundred

? A photograph submitted into evidence shows clouds of smoke

produced during open field burning in close physical proximity to a

residential neighborhood. See Pet. App. A60 (June 3, 2002,

Declaration of ur Long, Exhibit F).

® For instance, the Kootenai County Coroner submitted a declaration

and testified at the trial court hearing that Marsha Mason, a resident

of Rathdrum, Idaho, died as a direct result of grass residue burning.

The official Coroner’s death certificate expressed his opinion, “to a

reasonable degree of medical certainty, that Marsha son’s death

was caused by status asthmaticus precipitated he ure to severe

air pollution from grass field burning.” See E.R. 122. Another resident

described how his wife collapsed and died, at age 37, after being

exposed to smoke from grass residue burning. See E.R. 191. Sirnilarly,

10

declarations from citizens whose lives and health have

been adversely affected by ae residue burning. E.R. 58-

194, 195, 198-205, 198-222, 232-235.

2. The district court granted respondents’ motion to

dismiss. Pet. App. A47.’ The court did not question any

of petitioner’s evidence concerning the severity of the

adverse health impacts caused by respondents’ open field

burning of massive amounts of grass residue. The court

based its dismissal exclusively on its conclusion of law that

the grass residue was nota “solid waste” and therefore the

burning of the grass residue was not a“ disposal” of “solid

waste.” Id. at A39.

3. With one judge dissenting, the court of appeals

affirmed. Pet. App. A19."° The court held that SAFE had

“failed to demonstrate that a genuine issue of material fact

exists as to whether grass residue is ‘solid waste’ under

RCRA.” Id. at A2. Like the district court, the court of

appeals did not question the validity of the evidence of the

very severe and widespread adverse human health effects,

including the death of three residents, caused by the open

field burning of the grass residue. Id. at A19 n.15.

According to the court of appeals, summary judgment

was compelled because, even viewing the evilanes in the

light most favorable to petitioner, “there is no dispute that

[respondents] realize farming benefits from reusing grass

residue in the process of open burning.” Pet. App. A15.

The court did not question the validity of petitioner’s

evidentiary submission “that the two most important

a mother described the effect of the smoke on her 10-year-old

daughter, who suffers from cystic fibrosis and who had to be

hospitalized because of her exposure. See E.R. 180.

* The district court characterized its dismissal as a dismissal for lack

of subject matter jurisdiction pursuant to Fed. R. Civ. Pr. 12(b)(1),

reasoning that because crop residue did not amount to a “solid waste,”

RCRA Section 7002 did not provide jurisdiction over the complaint.

Pet. App. A34.

The court of appeals affirmed the district court’s judgment, but not

its conclusion that there was a lack of subject matter jurisdiction. See

note 9, supra. The court of appeals held that there was subject matter

jurisdiction, but then suentad eumedeaty judgment on the merits for

respondents. Pet. App. A6-A7, A19.

11

benefits from open burning of grass residue, sunlight

absorption and enhancing productive life of bluegrass

fields, result from the removal of grass residue,” and that

the other purported benefits - “the fertilizer in the ash and

reduced pesticide use” - are merely “incidental benefits.”

Id. The court likewise assumed the validity of testimony

that the farming benefits obtained by simply ridding the

surface of the fields of the grass residue was “99.9 percent”

of the reason why respondents engaged in such open field

burning. Id. at A14n.11. The court also re the

testimony of petitioner’s expert that the amount o organic

matter “that remains after burning provides little benefit

to the soil.” Id. at Al4 n.12. e court nonetheless

reasoned that so long as there were any benefits from the

open field burning, no matter how incidental to the

overriding and “primary” purpose of gen gh pos. rid of

the grass residue, the residue could not considered

“ discarded” under” RCRA statutory language.” Id. at A14-

A15. Finally, the court rejected petitioner’s contention that

the fact that respondents were burning the grass residue

was relevant to whether the material was being discarded.

Id. at A17n.13. The court ruled that “[t]he determination

of whether grass residue has been ‘discarded’ is made

independently of how the materials are handled.” Id.

(emphasis in original).

Judge Paez dissented. Pet. App. A20. He reasoned

that “ = home there is no dispute that [respondents] burn

the post-harvest crop residue to remove it from the fields,

and because this act of removal is within the plain

meaning of ‘discard,’” the district court's judgment should

have been reversed. Id. at A22. The dissent stressed that

respondents “admitted that the residue had to be removed

from the fields in order to maintain seed production and

to limit the insects and parasites that would otherwise find

food and shelter in the residue.” Id. at A21.

12

REASONS FOR GRANTING THE WRIT

Congress sought by enacting the Resource

Conservation and Recovery Act to eliminate the “last

remaining loophole in environmental law.” H.R. Rep. No.

94-1491, Sat Cone. 2d Sess. Pt. 1, at 4 (1976). Perversely,

however, by ignoring the plain meaning of the statutory

language, the Ninth Circuit's construction of RCRA’s

central jurisdictional term - “solid waste” - would create

a loophole that would defeat RCRA’s ability to protect

human health and the environment from injuries ca

by the mismanagement of solid and hazardous wastes.

Vader the court of appeals’ proffered construction, the

term “solid waste” would not extend to any secondary

material susceptible to some beneficial use, no matter how

incidental in nature. Indeed, RCRA would not even apply

where, as here, the primary “benefit” is avoiding the harm

the material would otherwise cause and that “benefit” is

therefore achieved by destroying the material. The lower

court's reading simply cannot be squared with the plain

meaning of “discard.

Because, moreover, “hazardous waste” is a subset of

solid waste, the implications of such a_ judicial

misconstruction of RCRA’s language immediately extend

to both RCRA’s solid and hazardous waste programs.

Generators of secondary materials from industrial,

manufacturing, and agricultural practices could engage in

classic waste Lenceal activities - in this case, the burnin

of massive amounts of such material in open fields - an

avoid any RCRA regulation. They could, based on the

Ninth Circuit's ruling, rely on the incidental fact that their

secondary material, like virtually all secondary material,

includes some constituents with residual economic value,

whether as “fuel” as in this case, or as “dust suppressant”

as in Times Beach, Missouri, or as construction “fill” as in

Love Canal, New York. See Robert Reinhold, U.S. O

to Buy All Homes in Town Tainted by Dioxin, NYT A1:6 (Feb.

23, 1983); Donald G. McNeil, Upstate Waste Site May

Endanger Lives, NYT A1:1 (Aug. 1, 1978).

For more than twenty years, EPA has reconciled

RCRA‘s competing objectives - promotion of recycling

13

and protection of public health and the environment - by

ser a broad recycling exemption from the definition

of “solid waste.” The Agency has defined the term in a

manner designed to protect public health and the

environment from waste mismanagement while

oe only certain narrowly defined, low risk,

recycling activities. EPA concluded that otherwise

RCRA’s objectives could not be accomplished. For that

same reason, however, by rejecting EPA’s threshold

construction of the jurisdictional term “solid waste,” the

court of appeals’ ruling completely unsettles the Agency’s

entire regulatory program.

The Ninth Circuit's ruling also creates a wide and deep

circuit conflict. Five federal courts of appeals have rejected

the Ninth Circuit’s reading of RCRA in a variety of ways.

In sharp contrast to the Ninth Circuit, each of those other

circuits has endorsed the essential proposition that a

generator of solid waste cannot evade the statute’s

requirements simply by exploiting the fact that the

secondary material has some residual economic value for

the freer business. They have also taken sharp issue

with the Ninth Circuit's view that the manner of recycling

- in this case, destruction by burning - is irrelevant to the

question whether the material is being discarded.

Review by this Court is warranted in this case to

provide clarity on a pure question of law of critical

importance to the implementation of one of the nation’s

most significant environmental protection statutes.

RCRA’s regulatory reach and ambition are too widespread

to tolerate so much uncertainty regarding the meaning of

its central jurisdictional term. As underscored by this case,

the human costs of that uncertainty are also massive.

Respondents’ activities are causing serious adverse health

effects, including hospitalizations and even deaths. The

petition for a writ of certiorari should be granted.”

" Because the Ninth Circuit's ruling has such profound implications

for EPA’s administration of RCRA, the Court may wish to invite the

Solicitor General to file a brief expressing the views of the United

States. See note 25, infra.

14

I. The Ninth Circuit misconstrued the meaning of

RCRA’s statutory definition of “solid waste”

The decision of the Ninth Circuit is inconsistent with

the plain meaning of RCRA’s statutory language defining

“solid waste,” RCRA’s structure and purpose, and EPA’s

authoritative regulations construing that same statutory

language for the purposes of RCRA’s hazardous waste

management program. The Ninth Circuit did not dispute

that respondents’ primary reason for open field burning of

grass residue was the destruction of that secondary

material because of the harm the residue would otherwise

cause. Indeed, the court was willing to assume that

getting rid of the grass was 99.9 percent of the reason for

its burning. See pages 8 & note 6, 10, supra. ag wt to

the court, however, so long as some “farming benefits

were realized from that burning, the residue’s destruction

did not render that material “discarded.” The court

further elaborated that “[t]he determination of whether

grass residue has been ‘discarded’ is made independently

of how the material is handled.” Pet. App. A18 n.13.

The Ninth Circuit’s reasoning is triply flawed. First,

when 99.9 percent of the reason that a person is burning

material is to get rid of it, such material is being

“discarded” within the plain meaning of that term.

Second, farming benefits produced by the material’s

destruction do not defeat classifying the grass residue as

“discarded material,” and therefore as “solid waste,”

within the plain meaning of RCRA. Third, the

determination of whether the grass residue has been

discarded cannot be made “independently” of how the

materials are handled because the manner of their

—— and the assumption that the ordinary meaning

of that language accurately expresses the legislative

P

Quality Management Dist., 541 U.S. 246 (2004), slip op. 5,

quoting Park 'N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S.

linn

15

189, 194 (1985). The ordinary meaning of “discard” in its

statutory context is “to cast off, cast aside, reject, abandon,

give up.” Oxford English Dictionary, 728 (2d ed. 1989); see

American Heritage Dictionary of the English Language,

514 (4" ed. 2000) ("to throw away; reject”); Random House

Webster’s Unabridged Dictionary, 561 (2"4 ed. 1997) (“to

cast aside or dispose of; get rid of”). It cannot be seriously

contended that getting rid of secondary material produced

by industrial, manufacturing, agricultural or commercial

activities must be the exclusive (100%) reason for its

destruction or abandonment before such material can be

considered “discarded” and therefore solid waste. A

erson might well enjoy the incidental aerobic benefit of

esh air and exercise from taking the garbage out to the

curb once a week. Ora parent might correctly believe that

it is extremely important to have his or her child perform

that errand to learn how to accept responsibility by doing

household chores.’ But it defies even the barest notions of

commonsense and understanding to suppose that such an

incidental benefit removes the garbage being taken out to

the street from the solid waste category.” .

The Ninth Circuit, however, did just that. It concluded

that the grass residue was not “discarded,” even if 99.9

percent of the reason for its burning was to get rid of it.

See note 6, supra. According to the court (Pet. — Al14-

16), so long as it could point to some other benefits, for

instance, small amounts of nitrogen in the resulting ash,

_the grass residue was outside the plain meaning of

“discarded material” no matter how incidental the value

'? See T. Berry Brazelton & Joshua D. Sparrow, Touchpoints 3 to 6,

339 (Perseus Pub. 2002); see also The Coasters, Yakety Yak, on The

Very Best of the Coasters (Rhino Records 1994) (“ Take out the papers and

the trash or you don't get no spending cash - - if you don't scrub that kitchen

floor you ain't gonna rock'n'roll no more - - Yakety yak, don't talk back’).

'® The State of Idaho’s own statutory program further confirms the

plain meaning of RCRA’s statutory definition of solid waste as applied

to respondents’ practices. The Idaho legislature enacted in 1999 the

Idaho Smoke Management and Crop Residue Disposal Act, Idaho

Code §§ 22-4801 to 22-4804. That state law specifica ly refers to open

field burning as “disposing of crop residue.” Id. § st see ID

Admin. Code, Tit. 6, Ch. 16, § 500 (rules applicable to “[a]ll persons

intending to dispose of crop residue through burning”).

——— ee

16

of nitrogen was to the respondents’ overriding purpose of

material destruction. The Ninth Circuit’s claim

notwithstanding, the plain meaning of “discarded

material” cannot be fairly said to command that result.

2. The Ninth Circuit's second error lies in its reliance

on the fact that the burning of crop grass residue produced |

“farming benefits.” Pet. App. A15. The court's mistake

was its complete failure to apprehend the legal

significance of the fact that almost all of those benefits

resulted from getting rid of the wastes.

We do not deny that there were farming benefits to be

obtained from getting rid of ‘he crop residue. Of course

there were. But the mere existence of some economic

advantage, even if substantial, to material destruction does

not convert the material being destroyed into something

other than solid waste and its destruction into something

other than the disposal or treatment of solid waste.

The facts of this case are illustrative. As the court of

appeals itself acknowledged, respondents’ destruction of

grass residue served several beneficial purposes because

the presence of the residue would otherwise cause

significant harm by impeding future crop productivity.

For instance, getting rid of the grass residue was primarily

necessary in order to expose the plant crown to sunlight,

air, and water. Pet. App. A14-A15, A21-A22; see note 6,

supra. Destruction of the grass residue also rid the soil of

possible weed growth. Id. Finally, the burning destroyed

some insects, pesticide residue and molds that would

otherwise find food and shelter in the grass residue. Id." -

But rather than demonstrating that the grass residue

was not being discarded, each a these alleged farming

benefits conclusively establishes the correctness of the

opposite conclusion. Although the lower court tries

mightily to characterize these as “farming benefits” of the

grass residue (Pet. App. A15), each is firmly rooted in

respondents’ desire to get rid of the residue by its

incineration because of the harm the material would

otherwise cause to future crop productivity. The

purported benefits come from the advantages of the

** See Supplemental Excerpts from the Record in Support of |

Defendants-Appellees, 11, 15.

17

secondary material being destroyed. Whatever ambiguity

might possibly exist in the meaning of “discard” in other

contexts, no such ambiguity exists in terms of its

application to material Dtricton. Such destruction

constitutes classic abandonment or discard under

longstanding and well settled understandings of the

meaning of that word.”

Nor does the fact that the grass residue serves as the

fuel of its own destruction take it outside the plain

meaning of “solid waste.” Pet. App. A15. Much waste can

be burned. That the material's chemical composition

allows it to burn does not render its incineration a

“beneficial” reuse of material rather than a“ discard.” Yet,

that is essentially what the Ninth Circuit held.

Finally, the court of appeals’ reliance (Pet. App. A13-

A16) on the fact that some incidental amounts of nitrogen

contained in the ash residue can be returned to the soil as

“fertilizer” is misplaced. At most, those nominal amounts

of nitrogen would themselves not be considered “solid

waste” because they are not being “discarded.” But that

possibility does not immunize the much larger amount of

post-harvest grass residue from being a “solid waste.”

Such an outcome would be far more than even the

proverbial tail wagging the dog. It would more closely

approximate a single hair on the tail of the dog doing so.

Indeed, EPA’s regulations make quite clear the

Agency’s view that secondary material generated by “[t]he

growing and harvesting of agricultural crops” and then

returned to the soil as fertilizers” is a “solid waste.” 40

C.F.R. § 261.4(b)(2)(1). In exercising Agency authority to

exclude such materials from the narrower definition of

* That the crop residue at issue in this case falls within the plain

meaning of “discarded material” is further reinforced by R ‘s

definitions of both waste “disposal” and “treatment.” “Disposal”

means the “placing of any solid waste * * * into or on any land * * * so

that such solid waste * * * or any constituent thereof may enter the

environment or be emitted into the air * * *.” 42 U.S.C. § 6903(3).

“Treatment” refers to “any method, technique or process * ** designed

to change the physical * * * character or composition of any hazardous

waste * * * so as to render such waste nonhazardous * * * or reduced in

volume.” Id. § 6903(34). Respondents’ activities are the kind Congress

contemplated in describing ict “disposal” and “treatment.”

18

hazardous wastes, EPA regulations expressly refer to these

materials as “solid wastes” and determine that they should

be excluded only from the category of “hazardous waste”

based on their return to the soil. Hence, the regulations

both make clear that the crop residue is solid waste even

if returned to the soil as fertilizer and never intimate that

residue that is burned and not returned to the soil is not a

solid waste, as the Ninth Circuit held.”

Even if, moreover, the plain meaning of the statutory

exclusion was not sufficient, standing alone, to defeat the

lower court's reading, EPA regulations interpreting that

statutory exclusion (which the court below completely

ignored) compel rejection of that reading. EPA’s detailed

regulations address an ambiguity in the application of the

statutory definition of “solid waste” to some kinds of

recycling activities. The ultimate source of that ambiguity

is located in RCRA’s dual and sometimes conflicting

purposes of promoting such recycling - to reduce the

amount of solid waste - while simultaneously seeking to

protect human health and the environment from the very

real risks caused by management of secondary materials,

including some management that can be fairly (and some

unfairly) dubbed “recycling.”

Yet, notwithstanding their complexity as applied to

some kinds of recycling activities, EPA’s regulations leave

no doubtas to the regulatory status of the kind of activities

relied upon by the Ninth Circuit in this case to escape

RCRA’s protective scope. Those regulatory efforts to

distinguish between the status under RCRA of various

kinds of recycling activities, ranging from closed loop

industrial processes to offsite reclamations (see 40 C.F.R.

§§ 261.1 - 261.4), create a regulatory labyrinth. But, as

applied to this particular case, all roads in this labyrinth

lead to the same clear conclusion: open burning of

'° EPA, therefore, has rejected the sweeping significance given by the

Ninth Circuit to House Report language that “[a]gricultural wastes

which are returned to the soil as fertilizers or soil conditioners are not

considered discarded materials in the sense of this legislation.” Pet.

App. A17, quoting H.R. Rep. 94-1491, 94" Cong., 2d Sess. 3 (1976). But

the lower court's reading was in all events clearly misguided because

the report language does not even purport to speak to the status of

materials not returned to the soil but instead, as here, burned.

19

agricultural crop residue constitutes handling, treatment,

or disposal of discarded material under the plain meaning

of “solid waste” and EPA’s authoritative construction.”

3. The Ninth Circuit's third error is no less fatal to its

decision than the first two. Contrary to the court of

appeals’ ruling (Pet. App. A18 n.13), the determination of

whether secondary material is being discarded can most

certainly not be made “independently of how the materials

are being handled.” As forcefully explained by Judge Paez

in his dissent below, “the fact that the residue is burned,

rather than mulched and returned to the soil, is relevant to

whether the residue constitutes ‘solid waste’ under

RCRA.” Pet. App. A24 n.6 (emphasis added).

Here again, the Ninth Circuit wholly ignored that EPA

agrees with Judge Paez. Agency regulations define

whether materials are being “discarded” based precisely

on how the materials are being handled. See 50 Fed. Reg.

614, 618 (1985) (“solid waste” determination based on two

inquiries: “both what the material is and how it is being

recycled”). The *, geome specifically provide that a

“discarded material is any material which is * * *

abandoned” and then further provide that “materials are

solid waste if they are abandoned by being * * * burned or

incinerated.” 40 C.F.R. §§ 261.2(a)(2)(i), 261.2(b)(2).

Respondents, of course, are doing just that: abandoning

the crop residue by incineration. In addition, EPA’s

regulations likewise defeat the Ninth Circuit's assumption

= Although EPA’s regulations address only the question of the

meaning of “solid waste” in RCRA’s Subchapter C hazardous waste

program (see 40 C.F.R. § 261.1(b)(1)), the regulations are relevant to

this case because they represent EPA’s authoritative construction of

the same statutory language interpreted by the Ninth Circuit below

and EPA has long construed the meaning of “solid waste” in the

hazardous waste context as narrower, not broader, than in the statute

as a whole, including Section 7002. 50 Fed. Reg. 614, 627 (1985); 68

Fed. Reg. 61558, 61562 (2003); see Connecticut Coastal Fisherman’s

Ass‘n v. Remington Arms, 989 F.2d 1305, 1315 (2d Cir. 1993); Comite

Pro Rescate de Ia Salud v. Puerto Rico Aqueduct & Sewer Auth., 888

F.2d 180, 187 (1* Cir. 1989). Hence, if a secondary material constitutes

“solid waste” for the purposes of Subchapter C, notwithstanding its

nexus to recycling, that same secondary material would have to

constitute “solid waste” for the purposes of Section 7002. The former

is narrower, and never broader, than the latter. See pages 22-23, infra.

20

that the crop residue can avoid being classified as solid

waste because respondents are “recycling” the residue by

using it as “fuel” to blacken the soil or to eliminate insects

within the residue. EPA’s regulations expressly provide

that recycling in this precise manner - using the secondary

material as a fuel for burning - renders the material a

“solid waste.” See 40 C.F.R. § 261.2(c)(2)(i)(B).”

II. The Ninth Circuit’s ruling seriously erodes

RCRA’s effectiveness in protecting human health

and the environment

The legal issue presented by this petition concerns the

meaning of the key jurisdictional term of one of the

nation’s most important environmental protection laws.

The term “solid waste” determines RCRA’s scope because

RCRA seeks to regulate unreasonable risks to human

health and the environment only to the extent that such

risks are presented by “solid waste.” RCRA offers

protections, such as those established by Section 7002,

against threats caused by mismanagement of solid wastes

in general, but the Act focuses its most stringent

requirements on those solid wastes that also meet the

statute’s criteria for being considered “hazardous” as well.

See page 3, supra. RCRA’s effectiveness in addressing

human health and environmental risks created by

mismanagement of secondary materials is therefore

directly and immediately dependent upon _ the

construction of the statutory term “solid waste.” That is

why courts and EPA refer to it as RCRA’s “pivotal

jurisdictional term,” the meaning of which is “critical”

because it plays a “key role in defining the scope of EPA’s

** Under EPA’s classifications of different types of secondary

material, respondents’ grass residue would be a “by-product” (40

C.F.R. § 261.1(c)(3)), which, when used as a fuel, is a solid waste (id. §

261.2(c)(2)(i)(B)). The court of appeals also erred in positing (Pet. App.

A15) that it was not factually disputed whether the burning benefitted

the soil by blackening it. The expert witness upon whom the panel

relied testified that he performed a comprehensive literature search

and found no reference to soil blackening as a benefit of burning

bluegrass. E.R. 253.

21

RCRA’s authorities.”’”

For this same reason, the > ere of the Ninth

‘4

effectively eliminating the statute’s application to

secondary materials susceptible to some, even fairly

nominal, recycling. The court below has, in practical

effect, created a gigantic loophole from regulation ina law

that, ironically, Congress intended to close the last

remaining loophole in environmental law. Not on! would

citizens lose the ability, as in this case, to use Section 7002

to challenge waste management activities that present

imminent and substantial endangerments to their health,

but RCRA’s entire hazardous waste program would be

seriously jeopardized.

1. For more than two decades, a central pillar of EPA’s

hazardous waste program under RCRA has been the

Agency’s 1985 rulemaking that the er ——

“solid waste” could be reasonably construed to include

many materials subject to recycling and therefore RCRA’s

strict management requirements could apply to related

recycling activities. See 50 Fed. Reg. 614 (1985); pages 5-6,

supra. If, as the Ninth Circuit ruled in this case, the plain

meaning of the statutory definition of “solid waste” does

not extend to materials subject to the kind of recycling

accomplished here, including burning for destruction,

burning as “fuel,” and burning to recover incidental

chemical constituents in residual ash, then EPA would

have no authority to construe that same _ statutory

language anywhere in RCRA, including its hazardous

waste program. The wide ranging kinds of recycled

materials and recycling activities that EPA has for two

decades concluded must be regulated as “hazardous

waste” to accomplish RCRA’s important objectives would

° American Mining Canen v. EPA, 824 F.2d 1177, 1187 (D.C. Cir.

1987); Connecticut Coastal Fishermen’s Ass'n v. Remington Arms Co.,

989 F.2d 1305, 1308 (2d Cir. 1993); 68 Fed. Reg. at 61561.

|

22

instead necessarily fall outside the statute’s reach.”

2. Nor can this direct and far-reaching consequence of

the court's ruling be avoided on the ground that EPA has

made clear that its RCRA regulations construing “solid

waste” apply only to its hazardous waste program. See 40

C.F.R. § 261.1(b)(1); page 5, supra. To be sure, if EPA were

contending that the term “solid waste” somehow had a

broader meaning in the context of the hazardous waste

program than under the statute in general, such an

argument could be fairly made. But, it most certainly

cannot be fairly made where, as here, the reason for EPA’s

disclaimer in its hazardous waste regulations is its

opposite determination that the term “solid waste” should

have a narrower meaning in the hazardous waste context

than in the statute as a whole.” A plain meaning

EPA concluded that the definition of “solid waste” should include

most recycling activities because otherwise the Agency could not

effectuate congressional intent to protect the public from the health

and environmental threats presented by such activities. See 48 Fed.

Reg. 14472, 14473, 14502-505 (1983); 50 Fed. Reg. 614, 616-618 (1985).

To be sure, EPA did narrowly define some recycling activities, such as

closed loop industrial processes, as not warranting such regulation,

but the Agency’s general policy was one of regulatory inclusion in

seeking to define the kinds of recycling activities that were sufficiently

akin to disposal (such as burning as fuel and placement on land) as to

warrant heightened control. See page 5, supra. In justification of its

decision, EPA included in its rulemaking a lenis list of 67 hazardous

waste sites around the nation, many of w ich were then on the

Superfund National Priority List, that had been created by “recycling

activities.” 50 Fed. Reg. 614, 658 App. A (1985). Not surprisingly,

many of these sites contained wastes that had avoided early RCRA

regulation because industry had claimed that the materials involved

were not waste but instead “fuel” capable of being burned. Id. Indeed,

it was the desire to avoid more such Superfund sites that was largely

why EPA decided in 1985 that RCRA’s definition of “solid waste”

should extend to many recyclable materials, especially those involving

burning as fuel and placement on land. Id.

*! EPA chose to construe more narrowly the term “solid waste” as

— to its hazardous waste program in order to avoid unduly

chilling certain kinds of recycling activities that the Agency

determined did not present the degree of health and environmental

risks that warranted the full application of RCRA’s very stringent

requirements applicable to hazardous waste management. Comite Pro

Rescate de la Salud v. Puerto Rico Aqueduct and Sewer Authority, 888

F.2d 180, 187 (1* Cir. 1989).

23

construction of “solid waste,” like that adopted by the

Ninth Circuit below, that exempted virtually all recycled

materials and recycling activities, would necessarily bar

EPA from regulating such materials and activities under

its Subchapter C hazardous waste program. If they fall

outside the statutory definition of solid waste, they would

necessarily fall outside the regulatory definition.

3. Like the statutory language, the statutory structure

supports EPA’s decision. 1984, Congress amended

RCI to provide for oe ema of small en

_,. waste, which had previously been exempted.

42 US.C. § 6921(d). The new law required the EPA

Administrator to promulgate generator, transporter, and

treatment, storage and disposal requirements applicable to

such waste. Id. g 6921(d)(1). But, for the purposes of this

case, what is relevant is that Congress further provided

that such standards should likewise be “applicable to the

legitimate use, reuse, recycling, and reclamation of such

wastes ***.” Id. § 6921(d)(2). Congress, therefore, clearly

contemplated that the category of “solid wastes” would

extend to material being recycled. Congress understood

the health and environmental risks caused by these

activities and their close kinship to classic disposal

activities (see note 20, supra) and, accordingly, instructed

EPA to ensure that “such standards shall be sufficient to

protect human health and the environment.” Id.

4. Finally, there is no merit to the Ninth Circuit's

apparent belief (Pet. App. A19-A20n.16) that the Clean Air

Act, 42 U.S.C. §§ 7401 et seq., justifies the court’s crabbed

reading of RCRA. RCRA nowhere suggests that waste

management activities potentially subject to Clean Air Act

air emissions controls are exempt from RCRA regulation

as “solid wastes.” Indeed, when Congress wanted to create

just that type of exclusion, it did so narrowly and

expressly, as it did by excluding from the statutory

definition of solid waste “solid or dissolved material in

domestic sewage, or solid or dissolved materials in

irrigation return flows or industrial discharges which are

point sources subject to permits under [Section 402 of the

Clean Water Act].” 42 U.S.C § 6903(27). Absent such an

explicit exclusion, there is no room within RCRA’s plain

24

statutory terms to read into the Act a far more expansive

Clean Air Act exception, especially when RCRA’s driving

purpose was to eliminate statutory loopholes and gaps.

Indeed, RCRA 7002(a)(1)(B), the citizen suit provision

upon which petitioner relies in this case, is specifically

aimed at filling the very kind of statutory gap presented

here. Congress did not condition the right of a citizen to

bring a suit under Section 7002(a)(1)(B) on the threshold

showing of any violation of any specific requirement of a

federal environmental law, whether based in RCRA, the

Clean Air Act or any other law. Congress instead

deliberately created a catch-all provision designed to

provide judicial redress whenever an “imminent and

substantial endangerment to health” is presented by the

“handling, storage, treatment, transportation of any solid

or hazardous waste.” 42 U.S.C. § 6972(a)(1)(B). Congress

created this public health safety net without regard to the

precise environmental media (i.e., air, water, land) by

which the threat was conveyed in order to guard against

the possibility that statutory gaps and loopholes might

otherwise leave the public unprotected from serious

human health hazards from environmental contamination.

See Richard B. Skaff, Emergency Provisions in the

Environmental Protection Statutes: A Sipaiation fora Unified

Emergency Provision, 3 Harv. Envt’l L. Rev. 298, 300-303

(1979); H.R. Rep. No. 98-198, 98" Cong. 2d Sess. Pt 1, 47-49

(1984). It is, accordingly, no answer to the plain meaning

of RCRA, including Section 7002(a)(1)(B), to contend that

SAFE should look elsewhere for judicial redress.”

# Nor is the possibility of an action under state nuisance law a

reason to deny relief in this case. RCRA does not supplant state

nuisance law (42 U.S.C. § 6972(f)), but neither does state nuisance law

supplant RCRA Section 7002(a)(1)(B). There is particular reason,

moreover, not to do so in this case because of the tendency of many

States, including Idaho, to create statutory provisions that immunize

agricultural pone from common law nuisance lawsuits. Indeed, at

the behest of some respondents in this case, Idaho recently enacted a

state law effectively immunizing them from any possible state tort

nuisance or trespass action based on harm caused by open field

burning, no matter how severe the human health consequences. See

I.C. § 22-4803A(6). Not only do such legislative enactments raise

substantial constitutional concerns, in light of their negative impact on

both private property values and human health (see Moon v. North

25

Congress concluded differently.

III The Ninth Circuit’s ruling conflicts with the

rulings of other federal courts of appeals that

have construed the same statutory language

The Ninth Circuit’s extraordinary ruling that a

secondary material falls outside the statutory definition of

“solid waste,” even if 99.9 percent of the reason for its

destruction is to get rid of it, because the material's

destruction is “beneficial,” finds no support in any

decision of any other federal court of appeals. The divided

panel’s ruling, moreover, is indicative of growing

confusion in the courts of appeals concerning the meaning

of “solid waste” as applied to recycling under RCRA. That

this confusion could have produced an appellate ruling in

such defiance of RCRA’s plain meaning and overriding

purpose strongly counsels in favor of this Court's review.

1. Five other circuits have rejected the Ninth Circuit's

central view that “solid waste,” within the meaning of

RCRA, cannot extend to secondary materials when being

recycled so long as such recycling provides some economic

“benefits” to the recycler. They also all further refute the

extreme notion that material can be destroyed without

being “discarded” if it is beneficial to destroy material that

would otherwise be harmful. In sharp contrast to the

court below, they all share the essential premise of the

D.C. Circuit in American Petroleum Institute v. EPA, 216

F.3d 50, 57-58 (2000) that the “predominant purpose” in

handling material determines whether it is ‘discarded”

and therefore a RCRA “solid waste.”

In United States v. ILCO, Inc., 996 F.2d 1126 (1993), for

instance, the Eleventh Circuit held that lead parts

reclaimed from spent car and truck batteries for recycling

purposes constituted “solid waste,” notwithstanding their

potentially significant economic value. The court rejected

claims, analogous to those made by respondents and

Idaho Farmers Ass’n, 96 P.3d 637 (Idaho 2004), petition for writ of

certiorari pending No. 04-594), but they also underscore the wisdom

of Congress’s decision in Section 7002 to — the public with

protection in the face of hazards rising to the very high level of an

‘imminent and substantial endangerment.”

Ac TT

26

upheld by the courts below, that the fact that the lead parts

had potentially significant value necessarily took the

secondary material involved outside RCRA’s scope. The

court instead ruled that “EPA has the authority to define

materials destined for recycling as a subset of ‘solid

waste.” Id. at 1131 n.8.

To similar effect was the D.C. Circuit’s decision in

American Petroleum Institute v. EPA, 906 F.2d 729 (1990). At

issue in that case was the regulatory status of slag residue

from the production of steel. It was undisputed that the

slag residue was a valuable economic commodity based on

its susceptibility to reclamation and the recovery of

valuable metals. Yet, the D.C. Circuit ruled that the sla

residue plainly fell within the statutory definition of “soli

waste,” actually — a more narrow interpretation

offered by EPA at the time. Id. at 740-742.”

In Owen Electric Steel Co. of South Carolina v. Browner, 37

F.3d 146 (4" Cir. 1994), the secondary material in dispute

was once again siag material from steel production. On

this occasion, the beneficial reuse was that the slag was

being sold for use in roadbed construction. The Fourth

Circuit, however, had no difficulty in concluding that

EPA’s regulations, which treated the slag as “hazardous

waste,” did not extend beyond the bounds of the same

statutory definition of “solid waste” quite differently

construed by the Ninth Circuit in this case. Id. at 149.

The Fifth Circuit decision in United States v. Marine

Shale Processors, 81 F.3d 1361 (1996) is | priageme4 relevant

because it underscores the pitfalls of the Ninth Circuit's

heavy reliance on the fact that the grass residue was

capable of being burned as fuel. In Marine Shale Processors,

the defendant claimed that contaminated soil was not a

“waste” because the defendant was using it as a“ product”

in the form of a feedstock that was being burned.

Presumably, the defendant in that case could have argued,

like the court below held in this case, that one of the

* In American Mining Congress v. EPA, 907 F.2d 1179, 1185 (D.C. Cir.

1990), the D.C. Circuit rejected the mining industry argument that

sweeney Brgeoseen F see by mining was not a “solid waste”

because that material was “‘beneficially reused in mineral processin

operations.” Id., quoting Final Brief of Consolidated Petitioners at 1

aE _—_--eewoor_'———r—rorororrreaeEeEeEeEeEyEeyyErQGEey--——— ee

27

benefits produced from the burning was getting rid of the

contaminated soil. Not surprisingly, the Fifth Circuit had

little difficulty rejecting the defendant's argument, ruling

that the district court had erred in granting summary

judgment to the defendant without first allowing the jury

to consider factual allegations that the defendant's burning

activity amounted to sham recycling. Id. at 1366.

Also in fundamental tension with the Ninth Circuit's

sweeping rationale in its decision below is the Tenth

Circuit's decision in United States v. Self, 2 F.3d 1071 (1993).

In Self, the Tenth Circuit ultimately concluded that a

particular reuse of a natural gas condensate did not

amount to a “solid waste” under EPA’s regulations more

narrowly defining that term for the p of its

hazardous waste program. The court of appeals, however,

never questioned the validity of EPA’s central position

that “certain types of materials that are being recycled by

being burned for os recovery are considered solid

wastes.” Id. at 1077. The court agreed with EPA that the

statutory definition of solid waste generally allows the

Agency to regulate materials being recycled. Id. at 1077-

79. The court also did not dispute that the burning of

secondary materials er toa “discard.” Id.

The court parted ways with EPA only with regard to the

Agency’s interpretation of its own regulations as applied

to a specific use of natural gas condensate. Id. at 1 2.

2. This case would also be the right time for the Court

to decide the legal issue presented. The Ninth Circuit's

ruling is simply the most recent and extreme product of

growing confusion in the lower courts concerning the

status of recycled materials as “solid waste” under RCRA

in general and Subchapter C in particular. Ever since 1987,

when the D.C. Circuit handed down its ruling in American

Mining Congress v. EPA, 824 F.2d 1177 (D.C. Cir. 1987),

both EPA and the lower courts have struggled to develop

a coherent principle for distinguishing between recycled

materials that fairly fall within the statutory definition of

“solid waste” and those that do not. The D.C. Circuit's

suggestion of a guiding principle purportedly based ona

reading of the statute's plain meaning - which is little

more than whether the waste materials are “part of the

28

waste disposal problem” (824 F.2d at 1186) - has proven

largely circular and ultimately unhelpful. The resulting

confusion has prompted EPA to make a series of missteps

on either side of the D.C. Circuit's fairly illusory and

anel-shifting dividing line.* It has also prompted the

Lind of extraordinarily misguided interpretation embraced

by the Ninth Circuit in this case.

3. Finally, the existing circuit conflict is not one that

should be iolevebed. The conflict concerns the meaning of

“solid waste,” which is the central term defining the

jurisdiction of RCRA, a national environmental program

administered by EPA that is designed to protect human

health and the environment. That jurisdiction should not

be differently defined in different parts of the nation. As

contemplated by Congress, the statute’s scope as applied

to both solid and hazardous wastes should be the same

throughout the nation.

IV Review by this Court of the legal issue presented

by this case is warranted now

Review is warranted because this case provides a good

vehicle for resolution of an extremely important legal issue

that divides the lower courts. There is no reason to await

further litigation.

This case is an especially good vehicle because it

“ogee the important legal issue as a pure question of

aw unencumbered by any procedural matters. The

exclusive basis for the lower court's judgment was its

interpretation of the threshold jurisdictional term “solid

waste,” as defined in RCRA Section 1004(27). The court

did not dispute the validity of petitioner’s claim that the

** Compare American Mining Congress v. EPA, 907 F.2d at 1186 (the

D.C. Circuit 1987 holding in American Mining Congress v. EPA, 824 F.2d

at 1185 “concerned aay materials that are ‘destined for immediate

reuse in another phase of the industry's ongoing ere ry rocess’")

with Association of Battery Recyclers, Inc. v. EPA, 208 F.3d 1047, 1052-

1054 (D.C. Cir. 2000) (rejecting EPA’s claim that the 1987 D.C. Circuit

decision in American Mining Congress turned on the material bein

subject to “immediate reuse” in a temporal sense) and Safe Food

Fertilizer v. EPA, 350 F.3d 1263, 1268 (D.C. Cir. 2003) (“But we have

never said that RCRA compels the conclusion that material destined

for recycling in another industry is necessarily ‘discarded.””).

29

open burning of the crop grass residue created an

imminent and substantial endangerment to human health

and the environment, including the deaths of several

residents in the immediate vicinity of the burning activity.

The procedural posture of the case also presents the

legal issue regarding the meaning of “solid waste” in an

especially advantageous posture for this Court’s review.

The Ninth Circuit granted summary judgment in favor of

respondents, which means the court was bound to

consider any conflicting factual allegations of the parties

in the light most favorable to the petitioner, as the non-

rene. arty. See Board of Education v. Earls, 536 U.S.

822, 849 (2002). The court did not, for this reason, dispute

that the almost exclusive purpose of the burning was to

get rid of the crop residue because of the harm otherwise

created by the presence of the residue on respondents’

fields. See Pet. App. 14a & n.11; note 6, supra. Nor did the

court question petitioner's evidentiary submission that any

small amounts of nutrients remaining in the ash residue

after the burning could be of little use to the soil. Pet. App.

A15 n12. This case, therefore, raises the fundamental

question of the regulatory status of recycling activities

under RCRA in an especially clear and stark fashion.

Both the regulated industry and the public, such as

members of SAFE, whom Congress intended to be the

ultimate beneficiaries of RCRA’s peg 65 need this

Court's attention to this caper of law. The legal issue

concerning the relationship of recycling to the lain

meaning of “solid waste” under RCRA has now perco ated

in the lower courts for 18 years and the upshot has been

more, rather than less, regulatory incoherence, and finally

this untenable court of appeals ruling. SAFE'’s interests at

stake in this case are also immediate and compelling.

Respondents’ burning of massive amounts of grass residue

is causing serious and widespread adverse health effects,

which are especially severe for children and the elderly.

There have been repeated hospitalizations, emergency

medical care, and even several deaths. This Courts

review of this important legal issue is now warranted.

30

CONCLUSION

The petition for a writ of certiorari should be granted.”

Respectfully submitted.

RICHARD J. LAZARUS*

GEORGETOWN UNIVERSITY

LAW CENTER

600 NEW JERSEY AVE., N.W.

WASHINGTON, D.C. 20001

(202) 662-9129

JOEL M. GROSS FORD ELSAESSER

ARNOLD & PORTER, LLP ELSAESSER,JARZABEK,

555 TWELFTH ST., N.W. ANDERSON, MARKS, ELLIOTT &

WASHINGTON, D.C. 20004 MCHUGH, CHTD.

(202) 942-5000 123 S. THIRD AVENUE

SANDPOINT, ID 83864

(208) 263-0759

Counsel for Petitioners

* Counsel of Record

February 2005

* Because of the implications of the lower court's decision for EPA’s

administration of RCRA, the Court might also invite the Solicitor

General to file a brief expressing the views of the United States on the

question presented either after granting the petition (see International

Paper Co. v. Ouellette, 475 U.S. 1081 1986) or instead to assist the

Court's decision whether to grant the petition in the first instance (see

City or Chicago v. Environmental Defense Fund, 504 U.S. 906 (1992)).