Opposition Brief — Safe Air for Everyone v. Meyer

No. 04-1055

IN THE

Supreme Court of the United States

SAFE AIR FOR EVERYONE,

Petitioner,

v,

WAYNE MEYER, et al.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNitED STATES Court OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION

Peter C. ERBLAND Gary H. Baise

PAINE, HAMBLEN, COFFIN, Counsel of Record

Brooke, & MILLER, LLP ALEXANDER M. BULLOCK

701 Front Avenue, Suite 101 STEWART D. FRIED

P.O. Box E ANSON M. KELLER

Coeur d’ Alene, ID 83816-0328 | KiLpatrick Stockton, LLP

(208) 664-8115 607 14" Street, NW, Suite 900

Washington, DC 20005-2018

(202) 508-5800

Attorneys for Respondents

193771 ce}

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

i

OBJECTION TO PETITIONER’S

QUESTION PRESENTED

Pursuant to the provisions of Rule 15.2, the Growers

object to Petitioner’s characterization of the question

presented in this matter. The Ninth Circuit held that Petitioner

“has not demonstrated a genuine issue of material fact on

the issue whether grass residue was ‘discarded’ within the

meaning of the Resource Conversation and Recovery Act,

(“RCRA”), 42 U.S.C. § 6901 et seg., and was therefore a

‘solid waste’ under the statute.” Pet. at Al8. Petitioner’s

question presented contains two underlying assumptions that

do not accurately reflect the record below. First, neither the

District Court nor the Ninth Circuit found that Kentucky

bluegrass straw and stubble were “secondary material.”

Second, both the District Court and the Ninth Circuit found

that Petitioner presented no evidence to contradict that the

Growers’ use of their straw and stubble as part of

“a continuous farming process effectively designed to

produce Kentucky bluegrass.” Pet. at A15.

The proper question presented is whether the Ninth

Circuit erred in finding that, based upon the undisputed

evidence, there was no genuine issue of material fact that

the Growers do not “discard” their Kentucky bluegrass straw

and stubble, and therefore their use of this material is not

governed by RCRA.

ii

TABLE OF CONTENTS

Page

OBJECTION TO PETITIONER’S QUESTION

PRESENTED .......-000<42s0ueeeeeuemes i

TABLE OF CONTENTS ....-----seeeetttttt? ii

TABLE OF CITED AUTHORITIES ....-------- iv

COUNTERSTATEMENT OF THE CASE .....--- l

THE COURSE OF THE LOWER COURT

PROCEEDINGS ......---:-eeeeeeesesttee 2

1. Factual Background ......---++++e+e% 2

2. The District Court Dismisses the Complaint

gia a 6m Abb aonekone gia nen 7

REASONS FOR DENYING THE PETITION ....- 10

I. The Ninth Circuit’s Opinion Is Based Upon

and Is Entirely Consistent With RCRA’s

Statutory Definition of “Solid Waste” ..... 11

Il. The Ninth Circuit’s Opinion Is Consistent

With The RCRA Jurisprudence of Other

Circuit Courts of Appeal and Creates No

Conflict Between the Circuits .....-.-+-+> 17

Ill. The Ninth Circuit’s Opinion Has Created No

Loophole in Enforcement of RCRA’s

Hazardous Waste Regulations. ....------- 24

iii

Contents

Page

A. EPA’s Hazardous Waste Regulatory

Definition of Solid Waste Is Inapplicable

to This Matter Because Neither Stubble

Nor Straw Is Hazardous. ............ 24

B. The Ninth Circuit’s Opinion Creates No

Loophole In Regulating Hazardous

ES Se a nn 28

ED eh Soe viewhsokddivadedoacessce 30

iv

TABLE OF CITED AUTHORITIES

Page

Cases:

3550 Stevens Creek Associates V. Barclays Bank of .

California, 915 F.2d 1355 (9" Cir. 1990) ....--- 12

A&W Smelter & Refiners, Inc. v. Clinton, 146 F.3d

1107 (9 Cir. 1998) ...-. 22 eee errr errr 12

American Mining Congress v. EPA, 824 F.2d 1177

.C. Cir. 89BT) «o-oo ccc nnccenssnocests passim

American Mining Congress v. EPA, 907 F.2d 1179

(D.C. Cir. 1990) ....---- ee eer eeeereee 5, 14, 18, 20

American Petroleum Institute v. EPA, 906 F.2d 729

CDS. Cle, TODG) onan access cac ceases cessor 4-5, 23

Association of Battery Recyclers, Inc., v. EPA,

208 F.3d 1047 (D.C. Cir. 2000) ...--- 5, 12, 18, 19, 23

Bradley v. Austin, 841 F.2d 1288 (6th Cir. 1988) ... 26

Butler v. City of Prairie Village, Kansas, 172 F.3d

736 (10 Cir. 1999)... eee eee reece’ 13

CBS v. FCC, 453 U.S. 367 (1981) «-----+see eee: 9

Connecticut Coastal Fishermen's Assn. v. Remington

Arms Co., Inc. et al., 989 F.2d 1305 (24 Cir. 1993)

a iS eg ee re en ree 18, 22

Gallenstein v. United States, 975 F.2d 286 (6" Cir.

BOE iia deh ne waa ena eae Rene ANOR TSS 26

Cited Authorities

Page

Interfaith Community Org. v. Honeywell, Int’l, Inc.,

POE ae ee Ue Re OE kk ke sen cen ee 5

No Spray Coalition, Inc. v. City of New York, 252 F.3d

SOR Ge RED hiv dx adh cee le 23

Owen Electric Steel Co. v. Browner, 37 F.3d 146

(ir Ee SE ca Windia elon eu ieee 22, 23

Reiter v. Sonotone Corp., 442 U.S. 330 (1979) .... 9

Richards v. United States, 369 U.S. 1 (1962) ...... 9

Safe Food & Fertilizer v. EPA, 350 F.3d 1263 (D.C.

(Ans GED 6 sh eccakccbens Coupee 19, 23

Securities Industry Ass’n v. Board of Governors,

WO Rs. BOF AUOOD 6c 6a ses en ck. 9

United States v. ILCO, Inc., 996 F.2d 1126 (11" Cir.

ROMS + +40 kb nduw dveees ecb 18, 20, 21, 22

U.S. Equal Employment Opportunity Commission v.

AIC Security Investigations, Ltd, 55 F.3d 1276

(7? CR IR 660 Ce ae ee 12

vi

Cited Authorities

Page

Statutes:

Resource Conversation and Recovery Act

42 U.S.C. § 6901 ef seg. ..---- 0s errr etree i

42 U.S.C. § 6902(a) ...--- ese ee eerste trent 4

42 U.S.C. § 6903(27) ..----- errr rst rtrttt 4,12

42 U.S.C. § 6972 2... eececcceseeceseseess 5

42 U.S.C. § 7400 ef seg. ..----- ss errr crete 3

42 U.S.C. § 7404(a) ..--- eee cece rte terre 3

42 U.S.C. § 9601(29) ...----e cece errerttee 12

National Ambient Air Quality Standard for

Particulate Matter

40 C.ER. Part 50 ..... 2 ccc cccccccccesscces 3

40 C.E.R. § 261 0... c ccc ccccccccccccccses 24

40 C.F.R. § 261.2 .....cceeeecccccereserees 21

40 C.F.R. § 261.1(b)(1) .-- eee e eerste ert 25

40 C.F.R. § 261.2(C) ..-.-- eee e cece sereereee’ 27

40 C.F.R. § 261.2(e)fi) «--- ee ee eect ttre 27

Idaho Code § 22 — 4801 ef seg. ...----++eer00'' 6,27 —

Idaho Code § 39 —2305(2)(a) -------+eerrrrrre 3

Idaho Code § 39 — 2305(2)(b) «-- +--+ eeerrrree 3

Other Authorities:

The Shorter New Oxford English Dictionary 684

Cr Oe Oo) i 12

H.R. Rep. No 94-1491 (1976), reprinted in 1976

U.S.C.C.A.N. 6238 ....csccccccccccesccesss 4,13

l

COUNTERSTATEMENT OF THE CASE

This Petition for a Writ of Certiorari stems from the

dismissal of a citizen’s suit brought in the District of Idaho

arising under the RCRA. Petitioner challenged the age-old

practice of agricultural burning conducted by Respondents,

growers of Kentucky Bluegrass in Kootenai and Benewah

counties of the panhandle of northern Idaho (“Growers”). The

Growers conduct agricultural burning under the strict

supervision and control of the State of Idaho and pursuant to a

permit granted by the State of Idaho. Petitioner asserts that the

Growers’ burning activities constitute a violation of RCRA and

an imminent and substantial endangerment to public health and

the environment, despite operating, at all times, under a carefully

state regulated burning program under the auspices of the federal

Clean Air Act.

Following a lengthy evidentiary hearing on the Petitioner’s

Motion for a Preliminary Injunction and the Growers’ Motion

to Dismiss, the District Court found that the Growers used their

stubble and straw as part of the growth process and did not

abandon or discard it. Pet. at A39. The District Court dismissed

Petitioner’s complaint, holding that the Growers’ bluegrass straw

and stubble was not a “solid waste” and therefore RCRA did

not apply. Jd.

The Ninth Circuit affirmed the dismissal, holding that the

Growers’ Kentucky bluegrass stubble and straw were not solid

wastes, the core prerequisite for any RCRA action. The Ninth

Circuit, which reviewed the District Court’s dismissal de novo,

found that the undisputed evidence established that the Growers

used the stubble and straw as part of a continuous process of

growing bluegrass and did not discard or abandon it. After the

Ninth Circuit issued its opinion, Petitioner moved for

reconsideration and for an en banc hearing. Petitioner’s motion

was denied without receiving a single vote in favor of further

consideration.

2

The Petition asserts that the issuance of a Writ of Certiorari

is appropriate in light of the Ninth Circuit’s alleged

misconstruction of the definition of “solid waste,” the existence

of an alleged circuit conflict and the creation of a “broad

loophole” which purports to seriously erode RCRA’s

effectiveness. None of Petitioner’s contentions have merit. The

Ninth Circuit’s opinion was correctly premised upon its

application of the unambiguous meaning of the term “solid

waste” to the facts presented, in accordance with Congress’ clear

definition of that term. No circuit split exists and the Ninth

Circuit’s opinion is entirely consistent with the opinions of all

other circuits, including those issued by the D.C., Second, Fourth

and Eleventh Circuits. Finally, Petitioner’s claim that the Ninth

Circuit’s opinion creates a broad loophole in RCRA’s

effectiveness is unsupportable. Accordingly, the Growers

respectfully submit that the Petition be denied.

THE COURSE OF THE LOWER COURT

PROCEEDINGS

1. Factual Background

For decades, growers of Kentucky bluegrass in north Idaho

have conducted agricultural field burning of Kentucky bluegrass

straw and stubble as part of their normal farming operations.

The Growers farm on portions of the Coeur d’Alene Indian

Reservation and on the Rathdrum Prairie in Kootenai and

Benewah Counties, in the northern panhandle of Idaho. At the

time of the filing of this action, approximately 30,000 acres

were utilized for bluegrass seed production on the Coeur d’ Alene

Indian Reservation and approximately 7,000 acres were utilized

on the Rathdrum Prairie.

In north Idaho, Kentucky Bluegrass is a turf grass

grown primarily for the production of seeds for commercial

1. Substantially fewer acres of Kentucky bluegrass are currently

in production in north Idaho than were grown at the time of the filing of

Petitioner’s complaint.

3

sale. The process for growing bluegrass in north Idaho involves

an initial spring planting of seeds. The Growers actively monitor

and assist the growth and flowering of the grass plant during

the remainder of the first year and through the middle of the

summer of the following year. After the grass has flowered

during the second year, the stems are cut, leaving the cut

grass seeds, stems, and stubble on the field in order to dry.

The Growers use combines to harvest the grass seeds through a

process of cutting, separating, and collecting the seeds for further

cleaning and processing for sale to the consumer. The remaining

post-harvest materials, which includes straw and stubble are

used for plant regeneration and are burned in situ. See Pet.

at A2.

The practice of agricultural burning in Idaho is regulated

by the United States Environmental Protection Agency (“EPA”)

pursuant to the federal Clean Air Act (“CAA”) (42 U.S.C.

§ 7400 et seq.) and by the National Ambient Air Quality Standard

for Particulate Matter (40 C.F.R. Part 50). The State of Idaho

enforces the CAA through its EPA-approved State

Implementation Plan (“SIP”). State and local officials in Idaho

are required to and do monitor atmospheric conditions prior to

granting authorization to each Grower to burn each of their grass

fields.* Pursuant to state laws, open burning in Kootenai and

Benewah Counties is conducted only when “weather conditions

are conducive to good smoke dissipation . . . and [if] the burning

does not violate current state and federal air quality standards.”

Idaho Code § 39-2305(2)(a). Stubble and straw can only

be burned on the field where it was grown. Idaho Code

§ 39-2305(2)(b).

Agricultural burning is essential to producing consistent

and maximum yields of a healthy seed crop the following year.

2. Each State has primary responsibility for assuring air quality

within the entire geographic region comprising such state. 42 U.S.C.

§ 7404(a). The Idaho Department of Environmental Quality (“IDEQ”),

pursuant to a delegation of authority from EPA pursuant to the CAA,

administers its own elaborate air-quality program pursuant to its SIP.

4

Burning stimulates the soil, recharges and provides nutrients

for the grass plant’s root system, assists in eliminating parasitic

pests and destructive molds and fungus growth, and dramatically

lengthens the lifespan of a bluegrass field to as much as twenty

years.’ The field burning process also substantially increases

the yield of virtually all bluegrass seed varieties. If Kentucky

bluegrass fields in north Idaho are not burned, the crop yields

the following years are dramatically reduced to a small fraction

of prior yields and Growers must plow and replant the field in

order for them to remain economically viable. Pet. at Al2-14.

The Resource Converstion and Recovery Act and

Petitioner’s Citizen Suit Action

In 1976, Congress enacted RCRA “to promote the

protection of health and the environment” and to eliminate “the

last remaining loophole in environmental law, that of

unregulated land disposal of discarded materials and hazardous

wastes.” 42 U.S.C. § 6902(a); H.R. Rep. No 94-1491 at 4 (1976),

reprinted in 1976 U.S.C.C.A.N. 6238, 6241. RCRA applies only

to materials that meet the statutory definition of “solid waste.”

The term “solid waste” was specifically defined by Congress as

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

. resulting from industrial, commercial, mining, and

agricultural operations. . . .” 42 U.S.C. § 6903(27) (emphasis

added).

As the statutory language makes clear, Congress did not

intend that RCRA govern all materials. Rather, it clearly and

unambiguously intended that its application be limited to

governing materials that are discarded and are no longer wanted

by the generator. See American Mining Congress v. EPA, 824

F.2d 1177, 1179 (D.C. Cir. 1987) (“AMC I”); American

3. The process of field burning is also environmentally beneficial,

adding badly needed topsoil to the fields and enhancing water quality

because the fields are neither plowed nor is the soil disturbed.

4. Hazardous waste is a subset of “solid waste.” Stated differently,

if a substance is not a solid waste, it cannot be a hazardous waste.

5

Petroleum Institute v. EPA, 906 F.2d 729, 732 (D.C. Cir. 1990);

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

1990) (“AMC II’); Association of Battery Recyclers, Inc., v.

EPA, 208 F.3d 1047 (D.C. Cir. 2000). Congress specifically

declared that “agricultural products that could be recycled or

reused as fertilizers were not its concern,’ inasmuch as it is

“not a part of the discarded materials disposal problem” RCRA

was designed to address. See Pet. at A17 (emphasis in original).

Petitioner brought this action under RCRA’s citizen suit

provision. 42 U.S.C. § 6972. To prevail in a RCRA citizen suit

action, a plaintiff must prove,

(1) that the defendant is a person ... who was or is a

generator or transporter of solid or hazardous waste. . . ;

(2) that the defendant has contributed or is contributing

to the handling, storage, treatment, transportation, or

disposal of solid or hazardous waste; and (3) that the

solid of hazardous waste may present an imminent and

substantial endangerment to health or the environment.

See Interfaith Community Org. v. Honeywell, Int’l, Inc., 399

F.3d 248, 258 (3¢ Cir. 2005). Any threat of imminent and

substantial endangerment to health or the environment must

be caused by “solid waste” as that term is defined in RCRA.

See Pet. at A8. Absent proof that a defendant has contributed or

is contributing to the handling, storage, treatment, transportation,

or disposal of a solid waste, a plaintiff cannot prevail under

RCRA’s citizen suit provision.»

5. Although Petitioner argued that the evidence demonstrated that the

Growers’ burning activities caused substantial endangerment to health and

the environmental, the District Court disagreed. It noted that Growers’

activities did not cause a violation of the EPA’s air quality standards and

that “the evidence failed to establish any link to any specific farm.”

Pet. at A43 n.7. Since the filing of the complaint, three burn seasons have

taken place. Neither the EPA nor Idaho’s Departmen: of Environmental

Quality have taken any action to restrict or curtail this lawful practice.

Moreover, despite the filing of a class action personal injury lawsuit in

Idaho state court and repeated attempts by those plaintiffs to obtain injunctive

relief, no validly issued injunction has been issued and the Growers

have continued to burn each summer in accordance with Idaho law.

6

The Evidence Presented During District

Court Proceedings

Much of the testimony and other evidence presented below

concerned the practice of agricultural field burning. Several

witnesses testified that burning provided fertilizer for the next

year’s crop by returning phosphorus and potassium to the soil.

See Pet. at Al3. Other witnesses testified that burning

substantially increased the productive life of a bluegrass field.

Id.

Petitioner presented no evidence that contradicted the

Growers’ testimony that the burning of Kentucky bluegrass straw

and stubble is a critical part of the growing process in north

Idaho. Indeed, one of Petitioner’s witnesses, Donald Jacklin, a

former bluegrass grower who utilized burning, testified that

“nothing beats burning” for increased yields of bluegrass seeds,

longevity of the fields, and reducing the need to use pesticides,

herbicides or fungicides. Jd. Mr. Jacklin also noted burning

maximizes the photo-induction potential and that farmers are

unable to use close cropping machines due to the extremely

rocky soil conditions. Jd.

The Growers also submitted evidence in support of the

undisputed fact bluegrass straw and stubble are important to

the continuous process of producing Kentucky Bluegrass seed.

See Pet. at A13-15. The Growers also submitted evidence that

they used and did not dispose of the stubble and straw. Jd.

Instead, the Growers used these materials in the seed production

process as part of the only effective method available in north

Idaho to achieve and maintain economically viable yields, to

expose the plant crown to sunlight, air and moisture, to reduce

parasitic bug infestation; to reduce the growth of fungi, to reduce

weed growth, to reduce the rodent population, and to condition

the soil. Jd. Finally, the Growers’ testimony was consistent with

the findings of the Idaho legislature that “the current knowledge ©

and technology support the practice of burning crop residue to

control disease, weeds, pests, and to enhance crop rotations.”

Idaho Code § 22-4801.

7

2. The District Court Dismisses the Complaint

The District Court conducted a thorough analysis of the

evidence presented and concluded that agricultural field

burning did not fall within RCRA’s definition of “solid waste.”

The District Court, “viewing the definitions of ‘solid waste’

and ‘disposal’ in the context of the entire statutory scheme of

RCRA,” held that burning of bluegrass stubble and straw was

“not meant to fall within the definitions of ‘disposal’ or ‘solid

waste.”” Pet. at A37-38. Judge Lodge concluded that RCRA

was inapplicable because the Growers did not discard or abandon

the bluegrass stubble and straw, “but instead, used [it] as part of

the growth process.” Jd. at A39. The District Court’s opinion

was premised upon its determination that a material must be

discarded before it is deemed to be a “solid waste.” Jd.

The Petitioner failed to present even a scintilla of evidence

to contradicts the Growers’ evidence that they used their

bluegrass straw and stubble as part of the growing process.

Likewise, Petitioner put forth no evidence that the Growers

abandoned or discarded this material. The undisputed testimony

conclusively established that the Growers uniformly intended

to utilize the straw and stubble and not to discard it. The District

Court concluded that because the Growers used the stubble and

straw as part of the growth process, and did discard or abandon

it, the bluegrass stubble and straw was not a solid waste and

RCRA did not apply. Pet. at A39. The District Court also found

that the particulate matter generated by the burning of Kentucky

bluegrass straw and stubble invoked concerns under the Clean

6. The District Court found that

there was no disagreement that burning the residue serves

legitimate purposes beyond mere removal of the residue

and, therefore, the residue is extremely valuable to the

farmers. Thus, the burning of the residue is not an

abandonment or discarding of the material but, instead, an

important part of the growth process.

Pet. at A38-39.

8

Air Act, not RCRA, noting that the burning in this case was not

what Congress intended to be regulated by RCRA.’ Id. at A43.

The District Court also commented that even if the burning was

considered a “disposal,” the complaint:

does not seek a remedy as to the act of burning itself.

Instead, Plaintiffs seek relief from the smoke created

from the burning. This type of relief, by its very

nature, invokes concerns under the Clean Air Act

(hereinafter “CAA”) which was promuigated

specifically to address air quality concerns. See 42

U.S.C. § 7400 et seq. RCRA, on the other hand,

was established to remedy the problems surrounding

the increasing amounts of solid waste by regulating

methods for disposal of the waste.

7. The District Court stated,

RCRA by its very nature is designed to address areas that

are more site specific (i.e. landfills and waste disposal

facilities) where the CAA is designed to address air quality

in a broader sense, which is what Plaintiffs seek to remedy

in this case. To allow citizens suits every time someone

disagrees with the air environment would be chaotic,

unmanageable, and unduly burdensome of the court system.

Pet. at A43-44. The District Court further noted

Congress has established methods of enforcement for the

protection of the public health both in RCRA and the CAA.

The remedy sought by the Plaintiffs, however, is more

appropriately sought under the provisions of the CAA and/

or may very well require a change in policy by the legislative

branch of government. See 42 U.S.C. § 7470....

The evidence here clearly established that the national

ambient air quality standard have not been violated by the

burning of grass residue in previous years and so Plaintiffs

may be unable to bring a suit under the CAA and, it appears,

the EPA has not acted arbitrarily in declining to do so.

Id. at A42-43.

9

Id. at A38. In sum, the District Court correctly concluded that

the burning of the bluegrass straw and stubble was an integral

part of the process of grass seed production and is not discarded.

The Ninth Circuit Affirms the District Court’s Judgment,

Concluding That RCRA Is Inapplicable As Kentucky

Bluegrass Straw and Stubble are Not Solid Wastes

The Ninth Circuit affirmed the District Court’s judgment,

concluding that Petitioner failed to establish a genuine issue of

material fact regarding whether Kentucky bluegrass stubble and

straw is a “solid waste” under RCRA. Pet. at A2. In reaching

this conclusion, the Ninth Circuit reviewed RCRA and its

statutory definition of “solid waste,” various Circuit Court

opinions interpreting the definition of “solid waste” and RCRA’s

legislative history. /d., at A8.

As this Court has often observed, “the starting point in every

case involving statutory construction is ‘the language employed

by Congress.”” CBS v. FCC, 453 U.S. 367, 377 (1981), (quoting

Reiter v. Sonotone Corp., 442 U.S. 330, 337 (1979)). Federal

courts are required to “start with the assumption that the

legislative purpose is expressed by the ordinary meaning of the

words used.” Securities Industry Ass’n v. Board of Governors,

468 U.S. 137, 149 (1984) (quoting Richards v. United States,

369 U.S. 1, 9 (1962)).

The Ninth Circuit relied upon RCRA’s unambiguous

statutory definition of “solid waste” and focused its attention

on whether the Growers’ bluegrass straw and stubble were

discarded materials. Pet. at A9. The Ninth Circuit looked to the

dictionary definition of the verb “discard” and to the undisputed

evidence that the Growers use the stubble and straw in a

continuous process of growing Kentucky bluegrass. The Ninth

Circuit held that because the Growers use and therefore do not

abandon or discard the stubble and straw, it is not a solid waste.

Pet. at Al5. The Ninth Circuit’s opinion is discussed in more

detail, infra.

10

REASONS FOR DENYING THE PETITION

The Petition should be denied because Petitioner has failed

to establish that any compelling reason for the issuance of a

Writ of Certiorari exists. Despite Petitioner’s predictions to the

contrary, the Ninth Circuit’s opinion addresses the narrow issue

of whether, based upon the undisputed evidence presented, the

Growers’ Kentucky bluegrass stubble and straw is a solid waste

under RCRA. The opinion of the Ninth Circuit, the first appellate

court to address the obscure claim that the burning of Kentucky

bluegrass presents an imminent and substantial danger to public

health and the environmental, does not conflict with any decision

issued by this Court or any of the circuit courts. Moreover, the

Ninth Circuit did not depart from the accepted and usual course

of judicial proceedings nor did it sanction such a departure by

the District Court. Finally, given the undisputed evidence

presented that the Growers use and do not abandon or discard

the stubble or straw, no erroneous factual findings exist.

The Petition takes issue with a narrow opinion of the Ninth

Circuit which sets no new standards nor has wide applicability.

Petitioner argues that the Ninth Circuit’s reasoning is contrary

to the plain meaning of RCRA’s statutory language, that its

opinion lies in direct conflict with the opinions of no fewer

than five other circuit courts of appeals, and that a broad loophole

has been created which will allow circumvention of RCRA’s

protections.*® Petitioner also claims that the Growers’ burning

activities provide only “incidental benefits” and that the Ninth

Circuit should have conducted an analysis of the Growers’

“handling” of the straw and stubble.

Petitioner’s arguments ignore that no circuit conflict exists.

Also, it fails to recognize that the District and Circuit courts

8. While Petitioner contends that a broad loophole in RCRA

enforcement has been created, they fail to point to even a single example

of any contributors to the nation’s solid or hazardous waste problem

who have avoided any regulatory oversight by EPA based upon the Ninth

Circuit’s opinion.

11

conducted the critical analysis required in any action brought

under RCRA’s citizen suit provision and properly concluded,

based upon uncontroverted evidence, that the Growers use the

straw and stubble as a continuous part of the growth process.

See Pet. at A18, A39 Both courts properly concluded that the

stubble and straw were therefore not “solid wastes” regulated

under RCRA. /d.

Petitioner’s assertions that the Growers merely derive

“incidental benefits” from the burning of the stubble and straw

ignore the clear findings of the Ninth Circuit based upon the

undisputed evidence. Pet. at A15. Finally, the Petition is little

more than a request to review the Ninth Circuit’s comment, in a

footnote, it did not need to determine whether the Growers’

burning activities constituted a “handling” of those materials

under RCRA because it had already determined that the stubble

and straw were not “solid wastes.” Pet. at A19 n.15.

The Ninth Circuit noted that its opinion was strictly limited

to the application of the existing RCRA jurisprudence to

the undisputed evidence presented. “We only hold that, in these

circumstances of Kentucky bluegrass farming, grass residue

customarily used in the farming cycle is not ‘solid waste’ under

RCRA.” Id. at Al9 n.14 (emphasis added). Petitioner’s

arguments are a thinly veiled attack on factual findings based

upon the uncontroverted evidence presented below. In sum, the

Petition raises issues which have little likelihood of being

applicable to any action which could arguably arise in the future

under RCRA, does not present a circuit conflict, and does not

warrant the issuance of a Writ of Certiorari.

I. The Ninth Circuit’s Opinion Is Based Upon and Is

Entirely Consistent With RCRA’s Statutory Definition

of “Solid Waste”

The comerstone of the Ninth Circuit opinion was its correct

conclusion that the stubble is not a “solid waste.” Under RCRA,

“solid waste” is defined as any garbage, refuse, sludge from a

wastewater treatment plant, water supply treatment plant, or air

12

pollution control facility and other discarded material. 42 U.S.C.

§ 6903(27) (emphasis added). The Ninth Circuit relied upon

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

Pet. at A9. It focused its attention on discarded material

and looked to the dictionary definition of the verb “discard.”

The Shorter New Oxford English Dictionary defines “discard”

as “to cast aside, reject, abandon, give up.” Id. (citing 1 The

Shorter New Oxford English Dictionary 684 (4% ed. 1993).’

The Ninth Circuit also relied upon the opinions of the D.C.

Circuit, which has repeatedly held that RCRA is an unambiguous

statute that need not and should not rewritten by this or any

other court. See AMC I, 824 F.2d at | 186 n.11 (rejecting EPA’s

argument that a narrow reading of “discarded” would “vitiate”

RCRA’s remedial purpose); see also Battery Recyclers, 208 F.3d

at 1056 (RCRA’s statutory language was unambiguous and did

not present the exceptional circumstances warranting resort to

its legislative history)."®

9. Opinions interpreting CERCLA also provide helpful guidance,

as the statutory definition of disposal in that statute is no difference

from the one found in RCRA. See 42 U.S.C. § 9601(29). The Ninth

Circuit stated that “[p]roperty is abandoned when the owner intends to

divest himself of all interest in it” A&W Smelter & Refiners, Inc. v.

Clinton, 146 F.3d 1107, 1111 (9% Cir. 1998). See also 3550 Stevens

Creek Associates v. Barclays Bank of California, 915 F.2d 1355, 1362

(9 Cir. 1990) (‘disposal’ refers only to the affirmative act of discarding

a substance as waste, and not to the productive use of the substance).

10. “[A] liberal construction does not mean one that flies in the

face of the structure of the statute.” U.S. Equal Employment Opportunity

Commission v. AIC Security Investigations, Ltd., 55 F.3d 1276, 1282

(7" Cir. 1995). Various Circuits Courts of Appeal have applied these

same principles of statutory construction even when the statutes are

remedial if the statute were unambiguous. In AIC, the Seventh Circuit

recognized that the “employment discrimination statutes have broad

remedial purposes and should be interpreted liberally, but that cannot

trump the narrow focus conclusion we draw from the structure and logic

of the statutes.” Jd. (holding that individuals who do not otherwise meet

(Cont'd)

13

The Ninth Circuit, after applying the statutory definition of

“solid waste” to the “undisputed evidence that the Growers reuse

the grass residue in a continuous farming process effectively

designed to produce Kentucky bluegrass,” concluded that no

genuine issue of material fact existed as to whether grass residue

is “discarded material.” Jd. at A15 (emphasis added). The Ninth

Circuit, based upon the voluminous record, properly found that

the evidence supported the determination that the stubble “is

not discarded, abandoned, or given up.” Based upon these well-

grounded determinations of fact and its statutory definition, the

Ninth Circuit concluded that bluegrass stubble and straw

therefore “does not qualify as ‘solid waste’ under RCRA.” Jd.

The Ninth Circuit’s opinion is consistent with Congressional

intent in enacting RCRA. Congress made clear that its focus

was with materials that were truly wastes and not materials that

were not discarded.

Waste itself is a misleading word in the context of

the committee’s activity. Much industrial and

agricultural waste is reclaimed or put to new use

and is therefore not a part of the discarded materials

disposal problem the committee addresses. .. .

Agricultural wastes that are returned to the soil as

fertilizers or soil conditioners are not considered

discarded materials in the sense of this legislation.

H.R. Rep No. 94-1491, at 3 (1976), reprinted in 1976

U.S.C.C.A.N., 6239.

It is also well settled under RCRA that materials that are

reused in an ongoing manufacturing or industrial process are

not selid-wastes. See AMC I, 824 F.2d at 1186. The D.C. Circuit

(Cont'd)

the statutory definition of employer cannot be held liable under the ADA).

See also Butler v. City of Prairie Village, Kansas, 172 F.3d 736, 744

(10" Cir. 1999) (“while the ADA’s remedial purposes are broad and far-

reaching, the statute imposes liability only on a specifically defined class

of persons”).

14

in AMC J held such materials were not solid wastes, because

they “have not yet become part of the waste disposal problem,

rather, they are destined for beneficial reuse or recycling in a

continuous process by the generating industry itself.” Id.

(emphasis in original). Because such materials were never

“disposed of, abandoned, or thrown away,” the court concluded,

they were not “discarded” within the meaning of RCRA. /d. at

1193.

The Ninth Circuit correctly followed the reasoning of the

D.C. Circuit in AMC Jin holding that Congress clearly intended

to grant EPA’s authority under RCRA “only to materials that

are truly discarded, disposed of, thrown away, or abandoned.”

Id. at 1190 (emphasis added). In concluding that the bluegrass

stubble and straw were always retained and used by the Growers

as part of the growth process and were therefore not discarded

materials, the Ninth Circuit reasoned that “encompassing

materials retained for immediate reuse within the scope of

‘discarded material’ strains, to say the least, the everyday usage

of that term. Pet. at A10 (citing American Mining Congress V.

E.PA., 907 F.2d 1179, 1184 (D.C. Cir. 1990)).

Petitioner ignores that it failed to demonstrate a genuine

issue of material fact that the stubble and straw were solid wastes

under RCRA and contorts the Ninth Circuit's holding in an

attempt to support its argument that “solid waste” “cannot extend

to secondary materials .. . so long as such recycling provides

some economic ‘benefits’ to the recycler.”" Pet. at 25. Although

Petitioner acknowledges that the “statutory touchstone” for

determining whether a substance is solid waste turns on whether

such material is discarded, rather than focus on whether or not

11. Although Petitioner claims that this was the Ninth Circuit’s

central holding, review of its opinion leads to the clear ccnclusion that

it was not.

15

the Growers discarded their post-harvest Kentucky bluegrass

straw and stubble, as the Ninth Circuit correctly did, it appears

to argue that virtually all materials generated by agricultural

(and other) producers constitutes “secondary material.”

Petitioner’s argument consists of three unsupportable

elements. In the first, Petitioner mischaracterizes bluegrass straw

and stubble as “secondary materials.” '? In the second, Petitioner

argues that the burning of the stubble and straw produces

only “incidental benefits” to the Growers. In its third element,

Petitioner attempts to broaden EPA’s regulations related to

hazardous waste to cover straw and stubble.

Petitioner’s arguments are incorrect, ignore the undisputed

findings made below and attempt to elevate irrelevant issues.

First, although Petitioner repeatedly describes the straw and

stubble as “secondary,” neither the EPA nor the District or Circuit

court has used that term. Petitioner, without any basis, attempts

to diminish the importance of the stubble and straw. To the

contrary, given the Growers’ active use of those materials as

part of the growth process, they are critical thereto. Petitioner

characterizes the bluegrass straw and stubble as providing merely

“incidental benefits” to the growing of Kentucky bluegrass and

assert, without any basis, that the benefits of the burning of the

stubble and straw are incident to the Growers’ goal of removing

the residue. Pet. at 11. Petitioner’s assertions are contrary to the

undisputed evidence presented which clearly established that

the Growers obtain far more than incidental benefits. Pet. at

Al15. They are also tantamount to an improper request to

judicially fashion a hierarchical system which substitutes

12. Petitioner broadly defines “secondary material” as “any

material generated by ‘industrial, commercial, mining and agricultural’

materials.” Pet. at 4. Under Petitioner’s definition, secondary material

includes all agricultural products, including the bluegrass seeds that are

harvested, gathered and sold by the Growers. Congress clearly did not

intend to regulate products destined for commercial sale in enacting

RCRA.

16

RCRA’s clear requirements with an analysis which compares

the benefits of a particular practice (e.g. burning) with other

alleged goals (e.g. removal).

Petitioner ignores that the judicial analysis of whether a

material is discarded is fact-specific and highly dependent on

evidence regarding the owner’s intent. This case, like all other

RCRA actions, involved an initial determination regarding

whether the material in question is a solid waste. That analysis

necessarily involves a thorough examination of the evidence

presented, with a particular focus on the testimony presented

by the owner of the materials about his intent regarding how

those materials are used in the production process and whether

or not the owner intends to relinquish or cast them aside.

Accordingly, opinions based upon factual determinations in one

RCRA action are rarely applicable to another, unless they involve

the same material.

Petitioner ignores that the Ninth Circuit determined that

the Growers derive critical “farming benefits” from the burning

of the straw and stubble. /d. Petitioner simply cannot overcome

the Ninth Circuit’s core conclusion that the uncontroverted

evidence supported the determination that they were not

discarded and therefore not solid wastes.'? Petitioner admits that

the nitrogen that is created following the burning of the straw

and stubble and is returned to the soil “would not be considered

‘solid waste’ because they are not being ‘discarded.””'* Pet. at

17. Finally, Petitioner ignores that the testimony of its own

witnesses supported the Growers’ claims regarding the

13. After finding that Petitioner did not contradict the evidence

presented by the Growers that stubble and straw is beneficial to the

growing of Kentucky Bluegrass, the Ninth Circuit noted that “[i]t is not

enough for Safe Air merely to argue that the uncontested benefits are

ancillary.” Pet. at Al9, n.14.

14. Petitioner fails to explain how some alleged recycled materials

resulting from a continuous manufacturing process are excluded from

the regulatory definition of solid waste (e.g. nitrogen returned to the

soils as fertilizer) while others are not.

17

importance and benefits of burning to the growing of Kentucky

bluegrass in north Idaho. /d. at A13.

In sum, Petitioner’s arguments regarding the statutory and

regulatory definitions of solid waste, in essence, ask this Court

to determine whether or not Kentucky bluegrass straw or stubble

is a solid waste through a new test which substitutes clear

Congressional intent, as set forth in the RCRA’s statutory

language, with an admittedly irrelevant regulatory definition.

This Court should decline this invitation inasmuch as RCRA’s

legislative history firmly supports the Ninth Circuit’s conclusion

that “the burning of bluegrass residue in not the evil against

which Congress took aim” in enacting RCRA. Pet. at Al7.

Respondents respectfully submit that this Court should reject

Petitioner’s argument.

II. The Ninth Circuit’s Opinion Is Consistent With The

RCRA Jurisprudence of Other Circuit Courts of Appeal

and Creates No Conflict Between the Circuits

A. The Ninth Circuit’s Opinion is wholly consistent with

RCRA’s clear statutory language and does not conflict with the

decisions of any other Circuit Court of Appeal. While Petitioner

asserts that “growing confusion” exists in the courts of appeal

regarding the meaning of solid waste as applied to recycled

materials under RCRA, review of the cited authorities does not

support this contention.'° Each opinion addresses narrow issues

that are specific to the facts of each case and most are also

premised upon interpretation of EPA’s inapplicable hazardous

waste regulations. Despite these factual dissimilarities, the Ninth

Circuit’s opinion is consistent with any broad principles

regarding RCRA “solid wastes” expressed by the various

circuits.

The Ninth Circuit evaluated whether the Growers’ reuse of

their stubble and straw fell within the statutory definition of a

15. Many of the authorities Petitioner cites in support of its claim

that a circuit split exists were also cited by the Ninth Circuit in its opinion.

18

solid waste and concluded that it did not, finding that the

Growers presented:

undisputed evidence that [they] reuse the grass

residue in a continuous farming process effectively

designed to produce Kentucky bluegrass... .

The bluegrass is not discarded, abandoned or given

up and it does not quality as “solid waste” under

RCRA, based upon its statutory definition of “solid

waste” as “discarded material.

Pet. at A15.

In support of its holding, the Ninth Circuit cited opinions

from the District of Columbia, Eleventh and Second Circuits.’

See e.g. AMC I, AMC II, Battery Recyclers and United States v.

ILCO, Inc., 996 F.2d 1126 (11" Cir. 1993); Connecticut Coastal

Fishermen's Assn. v. Remington Arms Co., Inc. et al., 989 F.2d

1305 (2% Cir. 1993). Petitioner claims that the Ninth Circuit’s

opinion stands in conflict with the opinions of no less than five

other circuit courts of appeal, because it concluded that material

can be “destroyed without being ‘discarded’ if it is beneficial to

destroy material that would otherwise be harmful.” Pet. at 25.

Petitioner further argues that the Ninth Circuit erred because

these allegedly recycled materials have some “economic

‘benefits’ to the recycler.” Jd.

These arguments do not accurately reflect the holdings of

the Ninth Circuit or any other Circuit Court of Appeal. None of

the cases cited by Petitioner involve stubble, straw, or any form

of agricultural materials or address non-hazardous materials that

were continuously used by the original owner as part of its

production process. All of the cases cited by the Petitioner

concern hazardous or recycled materials that were discarded by |

the original consumer or those materials that were deemed

16. Petitioner’s citation to the same authorities in support of its

claim that a circuit split exists is perplexing. As discussed more fully

infra, those opinions are all legally consistent with and factually

distinguishable from this action.

19

abandoned based upon the lengthy period that their owners did

not use them. In this matter, which did not involved recycled

materials or hazardous waste, the undisputed evidence

established that the Growers used the stubble or straw as part of

a continuous growing process and did not discard it."’

The Petitioner, like the Ninth Circuit, correctly noted that

the District of Columbia Circuit has addressed the definition of

solid waste under RCRA more frequently than any other Circuit

Court of Appeal. The Ninth Circuit’s opinion is consistent with

all of the RCRA’s decisions issued by the D.C. Circuit, including

its opinion in Safe Food & Fertilizer v. EPA, 350 F.3d 1263

(D.C. Cir. 2003). In Safe Food, the D.C. Circuit reaffirmed its

earlier holdings in AMC J and Battery Recyclers, holding that

“the term ‘discarded’ cannot encompass materials that ‘are

destined for beneficial reuse or recycling in a continuous process

by the generating industry itself.’ Jd., 350 F.3d at 1268.

The authorities cited by Petitioner do not support its claim

that a split in the circuits exists. For example, Petitioner’s

reliance on Battery Recyclers is misplaced. In Battery Recyclers,

the D.C. Circuit addressed a challenge to regulations that defined

residual or secondary materials generated in mining and mineral

processing operations as “solid waste” and affirmed its holding

in AMC J. 208 F.3d at 1052. In a unanimous opinion, the D.C.

Circuit found that EPA had not properly defined “‘solid waste’

when it had concluded that ‘discarded material’ included ‘any

material which is Abandoned . . . or Recycled’”. Id. at 1050.

17. Petitioner’s repeated references to recycled materials constitutes

a de facto invitation to this Court to review the entirety of the hazardous

waste regulations governing recycled materials. However, those

regulations are not applicable to the issues raised in the Petition. Although

the recycler has found a “treasure” in another man’s “trash,” to be

recycled, they must first have been disposed of. In this case, the Growers,

at all times, value and retain their straw and stubble and maintain it

within their exclusive possession for continuous use as part of the

growing process. Accordingly, it does not fall under the statutory

(or regulatory) definition of solid waste.

20°

[Petitioners] ask how secondary material held for

recycling in production could possibly qualify as

“waste” when the statute defines “waste” as

“discarded materials” 42 U.S.C. § 6903(27).

Id. at 1051.

The D.C. Circuit, noting that the question was not a new

one, rejected EPA’s attempts to limit AMC I to “immediate

reuse.” Jd. at 1052-53. It also rejected EPA’s arguments that

API and AMC II extended RCRA’s reach to materials that

were not discarded. The Court of Appeals succinct conclusion

is likewise applicable to this matter:

[A]t least some of the secondary material EPA

seeks to regulate as solid waste is destined for

reuse as part of a continuous industrial process

and thus is not abandoned or thrown away. Once

again, “by regulating in-process secondary

materials, EPA has acted in contravention of

Congress’ intent,” 824 F.2d at 1193, because it

has based its regulation on an improper

interpretation of “discarded” and an incorrect

reading of our AMC J decision.

Id. at 1056. Accordingly, to be regulated under RCRA, a

material must be discarded by the generator before RCRA

applies.

Petitioner’s reliance upon United States v. ILCO, Inc.,

996 F.2d 1126 (11" Cir. 1993), for the proposition that

recycled materials constitute solid wastes regulated under

RCRA is incorrect because ILCO is factually distinguishable

from this matter. The defendant in ILCO was a lead smelter

that purchased spent car batteries for recycling purposes.

While the Eleventh Circuit, in JLCO, concluded that

reclaimed lead parts from vehicle batteries were not exempt

from regulation under RCRA, that determination turned on

21

the fact that the materials were discarded by the original

consumer and reclaimed by the defendant. The Eleventh

Circuit stated that that “/p]reviously discarded solid waste,

although it may at some point be recycled, nonetheless

remains solid waste.” /d. at 1132 (emphasis added).

In the present case, the Growers, at all times, were the

original owners and retained exclusive ownership and control

over the bluegrass stubble and straw at issue in this matter.

The ILCO court’s finding that “[s]omebody has discarded

the battery” was central to its conclusion that EPA has

authority to regulate those materials which were discarded

prior to ILCO’s purchase. EPA’s authority to regulate those

materials is clear, as the batteries were already a part of the

nation’s waste problem that RCRA was designed to address.

Second, EPA sought to regulate the lead and cadmium, which

exhibit toxicity characteristics that render them hazardous

pursuant to 40 C.F.R. § 261.2, its hazardous waste

regulations.'* As discussed infra, those regulations are

inapplicable to bluegrass stubble and straw, neither of which

is hazardous.

The stubble and straw in question are materials retained

for immediate reuse “in a continuous stream or flow from

one production process to another.” AMC J, 824 F.2d at 1190.

“Previously discarded solid waste, although it may be

recycled at some point, remains solid waste.” JLCO, at 996

F.2d at 1132. To the contrary, materials which are never

18. Although EPA has promulgated regulations under RCRA which

list specific hazardous wastes by listing and by characteristics, it cannot

regulate any materials under RCRA unless they are solid wastes.

For example, lead batteries, while in the possession of the original

consumer and during its useful life, are not solid wastes under RCRA,

notwithstanding their toxic characteristics. However, once a spent car

battery loses its utility and is left by its undoubtedly unhappy owner

with a mechanic or by the roadside, it has been discarded or abandoned

and only then constitutes a hazardous solid waste regulated under RCRA.

22

discarded, but used as part of a continuous process, are not.

Pet. at Al8. Thus, the Ninth Circuit's opinion that the

Growers’ bluegrass straw and stubble is neither discarded

nor recycled is entirely consistent with ILCO.

Petitioner also relies upon Connecticut Coastal in

support of its claims that a split exists among the circuits.

Pet. at 19, 21. In Connecticut Coastal, the owners of a trap

and skeet club were deemed to have “discarded” the lead

shot and clay targets which were, at one time, used by its

members. 989 F.2d at 1308. The Second Circuit noted that

the shot and targets, after serving their intended purposes,

had been left to accumulate in Long Island Sound as much

as 70 years. Id. While the Second Circuit did not determine

how long materials must accumulate before they become

discarded, the Growers in present case burn the straw and

stubble days or weeks after the seeds are harvested

as part of a continuous process of growing bluegrass. '®

Id. at 1316. While the facts of Connecticut Coastal are readily

distinguishable from this action, the Second Circuit’s holding

is consistent with that of the Ninth Circuit’s opinion in this

matter. No comparison can be made between discarded lead

shot that was abandoned for decades with stubble and straw

that is continuously used by the Growers.

Despite Petitioner’s’ claim to the contrary, the Ninth

Circuit’s decision is consistent with all of the opinions issued

by other circuits. The Ninth Circuit’s opinion, which was

premised upon the undisputed findings that the Growers did

not discard or abandon their straw and stubble, is also

19. Under circumstances entirely different from this action, other

materials clearly are discarded. See Owen Electric Steel Co. v. Browner,

37 F.3d 146 (4% Cir. 1994) (slag generated as a byproduct of steel

production which remained untouched for six months or more before it

was sold to other entities was held to be “discarded” when it had was

not destined for beneficial reuse or recycling a continuous process by

generating industry itself).

23

factually distinguishable from those cases. The Growers’

use of the straw and stubble is entirely distinct from the

(1) hazardous petroleum products at issue in Am. Petroleum

Inst. v. EPA”®, 906 F.2d 729 (D.C. Cir. 1990), which were

held to be “indisputably ‘discarded’ before being subject to

metals reclamation” by another industry, (2) the previously

discarded batteries in Assn of Battery Recyclers, (3) the lead

shot and clay targets left in Long Island abandoned for

decades after serving “their intended purpose ” in Connecticut

Coastal, and (4) the slag which sat for six months before

being sold to another entity in Owen Elect.

The bluegrass stubble and straw, like the fertilizer in

Safe Food, is used by the Growers for their intended purposes

and are neither abandoned nor discarded nor destined for

recycling or reclamation in another industry. See No Spray

Coalition, Inc. v. City of New York, 252 F.3d 148 (2° Cir.

2001) (City did not “discard” insecticides when it sprayed

them into air with design of effecting their intended purpose

of reaching and killing mosquitoes and their larvae). Instead,

the straw and straw is used by the Growers as part of a

continuous process of the growing of Kentucky bluegrass

and is never discarded. “Material is not discarded until after

it has served its intended purpose. /d. at 149. Accordingly,

none of the authorities cited by Petitioner’s supports its

assertion that the Ninth’s Circuit’s opinion creates a conflict

among the various circuits.

As no circuit conflict exist, the Petition should be denied.

20. In Am. Petroleum, the Court of Appeals reaffirmed AMC J and

vacated portions of an EPA regulation that determined that oil-bearing

wastewaters were solid waste for purposes of RCRA. The Court held

that “[ljegal abandonment of property is premised on determining the

intent to abandon, which requires an inquiry into facts and

circumstances.” Jd. at 57. The intent of the generator is thus critical.

24

Ill. The Ninth Circuit’s Opinion Has Created No

Loophole in Enforcement of RCRA’s Hazardous

Waste Regulations

A. EPA’s Hazardous Waste Regulatory Definition of

Solid Waste Is Inapplicable to This Matter

Because Neither Stubble Nor Straw Is Hazardous.

Petitioner asks this Court to apply the highly specific

definitions set forth in RCRA’s hazardous waste regulations

into a matter governed under the more general scheme set

forth in RCRA itself. Petitioner argues that a broad loophole

in RCRA enforcement has been created by the Ninth Circuit’s

opinion. Both arguments are meritless as RCRA’s hazardous

waste regulations are inapplicable to this action and because

the Ninth Circuit’s opinion is a narrow one which is expressly

limited to the facts presented.

EPA’s hazardous waste regulations have “extremely

technical and precise distinctions,” and are admittedly

inapplicable to this case. Pet. at 6.2! EPA’s regulatory

authority under RCRA Subtitle C extends only to the

regulation of hazardous waste, which is defined as a subset

of solid waste. Under subtitle C, “the scope of EPA’s

jurisdiction is limited to those materials that constitute ‘solid

waste.’” AMC I, 824 F.2d at 1179 (citation omitted). Because

the Growers’ straw and stubble fall outside of the definition

of solid waste, RCRA’s hazardous waste regulations are

entirely irrelevant to this matter and all of Petitioner’s

arguments and inferences should be disregarded.”

21. Petitioner admits that EPA’s recycling regulations exist “only

for the purposes of administration of RCRA’s hazardous waste program.”

Pet. at 5.

22. Petitioner asks this Court to look to EPA’s hazardous waste

regulations for guidance, despite the undeniable inapplicability of those

regulations. Title 40, Part 261 of the Code of Federal Regulations, is

(Cont'd)

25

Petitioner ignores that the Ninth Circuit’s determination

that the straw and stubble were not solid wastes was central

to its analysis. The Ninth Circuit concluded, based upon the

undisputed evidence and the unambiguous statutory

definition of “solid waste,” that the Growers’ bluegrass straw

or stubble was used as part of a continuous process of the

production of Kentucky bluegrass and was therefore outside

of RCRA’s purview. It did not rely upon any definitions set

forth in EPA’s hazardous waste regulations.

Petitioner relies upon RCRA’s hazardous waste

regulations to support its contention that the Ninth Circuit

was incorrect in concluding that the burning of the Growers’

bluegrass straw and stubble did not constitute disposal of a

solid waste. Petitioner’s arguments miss the mark as neither

the District Court nor the Ninth Circuit relied upon RCRA’s

regulatory definitions. By asking this Court to ignore RCRA’

unambiguous statutory definition of solid waste and

substitute it with an admittedly inapplicable regulatory one,

Petitioner seeks to substitute the explicit intent of Congress

and relevant case law with definitional information contained

in irrelevant regulations. Petitioner’s request should not be

granted.

Petitioner attempts to overcome the flaw in its arguments

by making general references to RCRA’s overriding purpose

(Cont'd)

entitled “Identification and Listing of Hazardous Waste” (emphasis

added), and is by definition, inapplicable to both non-hazardous solid

waste and therefore to this action.

The definition of solid waste contained in this part applies

only to wastes that also are hazardous for purposes of the

regulations implementing subtitle C of RCRA. For example,

it does not apply to materials (such as non-hazardous scrap,

paper, textiles, or rubber) that are not otherwise hazardous

wastes and that are recycled.

40 C.F.R. § 261.1(b)(1).

26

of protection of human health and the environment; however,

this approach ignores two independent but critical points.

First, Petitioner ignores that public health protection

references in RCRA are general in nature and do not impose

specific duties on individuals. To the contrary, RCRA’s

statutory definition of solid waste is clear and strictly controls

judicial interpretations thereof. See Bradley v. Austin, 841

F.2d 1288, 1293 (6th Cir. 1988). While Petitioner appears to

claim that a conflict exists between the specific statutory

definition of solid waste and RCRA’s general goal of

protection of public health, a review of the text of RCRA

leads to the inescapable conclusion that no such conflict

exists. See Gallenstein v. United States, 975 F.2d 286, 290

(6th Cir. 1992) (the general rule that the specific governs the

general “does not apply when the plain language of the two

subsections can be reconciled without need for the application

of a general rule.”). Even if a conflict does exist, the specific

statutory definition of solid waste would control over the

general goal of public health protection. /d. Petitioner also

ignores that neither the District Court nor the Ninth Circuit

concluded that the burning of bluegrass straw or stubble

presents a danger to health or the environment.

Congress specifically declared that “agricultural products

that could be recycled or reused as fertilizers were not its

concern,” because it is “not a part of the discarded materials

disposal problem” RCRA was designed to address. Pet. at

A17. The Ninth Circuit concluded that the Growers’ stubble

and straw was “not the type of material Congress intended

to proscribe under RCRA.” Pet. at Al6

Petitioner ignores the fact that EPA has never found that

the Growers have violated RCRA. The reasons for such

administrative conclusions are clear. First, the practice of

field stubble burning is not new; rather, it is a long-standing

agricultural practice utilized by farmers in virtually every

state. Second, field burning is and has been strictly regulated

27

in north Idaho by the Idaho Department of Agriculture (ISDA)

and the Idaho Department of Environmental Quality (IDEQ)

pursuant to the Idaho State Implemental Plan (SIP)

promulgated under the Clean Air Act and the Idaho Smoke

Management Act. Idaho Code § 22-4801 et seq.

Petitioner’s argument that the Growers’ use Kentucky

bluegrass stubble and straw “in a matter constituting

disposal” is unsupported by the record and is entirely

dependent upon application of the inapplicable regulatory

definition of “disposal” set forth in EPA’s hazardous waste

regulations. Petitioner also ignores the factual findings made

below which demonstrate that the Growers’ burning of

bluegrass stubble and straw are an integral part of the process

of growing bluegrass in north Idaho. Pet. at A39. Petitioner

ignores the testimony of its own witnesses, which supported

the lower court’s findings that the straw and stubble did not

constitute a solid waste. For example, Petitioner’s star

witness, former grower Don Jacklin, admitted that the value

of burning to the production, panting and harvesting of

Kentucky bluegrass in North Idaho was irreplaceable. Jd. at

A13. Paul Meints, one of Petitioner’s experts, admitted that

open burning of the stubble and straw acts as a fertilizer and

restored nutrients to the fields. Jd. at A13-14.

Petitioner cites to 40 C.F.R. § 261.2(c) in support of its

claim that the Growers recycle the bluegrass straw and stubble

simply burning it. No support exists for the claim that the

straw and stubble are being recycled. To the contrary, the

entirety of the evidence demonstrated that the stubble and

straw are used as part of a “continuous process of growing

bluegrass,” that the Growers did not discard it and that

burning was required given the atmospheric conditions,

elevation and the poor, rocky soils in north Idaho. Pet. at

A12. Petitioner’s arguments also fail even when applying

the regulatory definitions set forth in 40 C.F.R. § 261.2(e)(i),

inasmuch as the District Court and the Ninth Circuit correctly

28

concluded, based upon undisputed evidence, that the Growers

used the stubble and straw. The record is entirely devoid of

any allegations or evidence that the Growers recycled it.

Accordingly, even assuming arguendo that RCRA’s

hazardous waste regulations were applicable to the burning

of Kentucky bluegrass straw and stubble, Petitioner’s

argument fails inasmuch as the stubble and straw is excluded

from the regulatory definition of solid waste.

Finally, Petitioner’s relies upon inappropriate regulatory

definitions applicable to recycled hazardous wastes that are

placed onto land. This argument is equally meritless because

neither the stubble nor straw nor the smoke that results from

its burning is recycled or constitute waste. “The burning of

bluegrass residue by farmers is not the evil against which

Congress took aim” in enacting RCRA. Pet. at Al7.

In sum, the Petition fails to present any compelling

reason why this Court should grant a Writ of Certiorari.

Petitioner relies upon regulations that are inapplicable to the

materials at issue in this matter. The District Court and the

Ninth Circuit properly rejected Petitioner’s arguments after

concluding that the entirely of the evidence established that

the Growers used their stubble and straw and did not discard

or abandon it.

B. The Ninth Circuit’s Opinion Creates No Loophole

In Regulating Hazardous Wastes

Petitioner contends that the Ninth Circuit’s opinion

creates a loophole that will prevent EPA from enforcing

RCRA’s hazardous waste regulations. Although Petitioner

devotes much of the Petition to this argument, it is

unsupported and its concerns are entirely unfounded. First,

the Ninth Circuit opinion is extremely narrow and is based

upon its holding that “in these circumstances of Kentucky

bluegrass farming, grass residue customarily used in the

farming cycle is not ‘solid waste’ under RCRA.” Pet. at Al9

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29

n.14. The Ninth Circuit’s opinion is entirely consistent with

the opinions of its sister circuits and given the narrow set of

facts upon which it is based, it is highly unlikely that it can

be construed broadly.

Second, the Ninth Circuit’s opinion did not refer to or

address EPA’s hazardous waste regulations and nothing in

the opinion is applicable to the hazardous waste regulatory

scheme. Moreover, to be regulated under RCRA, users of

hazardous materials, like users of non-hazardous materials,

must have discarded those materials. Absent discard, those

materials are simply not yet and may never be part of the

nation’s “waste disposal problem” Congress sought to cure

in enacting RCRA.

Third, Petitioner’s argument that entities “engaged in

classic waste disposal activities” will use the shelter provided

by the Ninth Circuit’s opinion to avoid “any RCRA

regulation” is highly speculative, has not resulted in a wave

of unregulated waste disposal activities to surge across the

land, and is not remotely likely to occur in the future.

Petitioner has failed to identify a single instance where an

entity otherwise subject to RCRA’s hazardous waste

regulations has even argued that the Ninth Circuit’s opinion

effectively deprives EPA of the power to enforce its hazardous

waste regulations.

Hazardous materials that are used by its original owner

will continue to be materials which are not “solid wastes”

and therefore not governed by RCRA. Materials that are

discarded, irrespective of whether they are hazardous or

recycled by another industry, will continue to be deemed solid

wastes and remain subject to RCRA’s dictates. The Ninth

Circuit’s opinion does not depart from established RCRA

jurisprudence governing solid or hazardous wastes.

30

CONCLUSION

Petitioner failed to establish any compelling basis for

the Court to issue a Writ of Certiorari in this matter. The

Ninth Circuit’s reasoning is consistent with all decisions and

authorities interpreting the meaning of solid waste under

RCRA. There is no conflict among the various circuits on

any issue raised in this matter. Additionally, no element of

the Ninth Circuit’s opinion will interfere with EPA’s ability

to enforce its regulations regarding hazardous waste because

the materials at issue, Kentucky bluegrass straw and stubble,

do not qualify as either solid or hazardous waste under

RCRA. Petitioner has not and cannot identify even a single

instance in which EPA’s ability to protect the public’s health

under RCRA has been compromised (or is likely to be in the

future) by the Ninth Circuit’s decision. In summary, there is

no compelling issue of law or of public policy that supports

any rationale under which this Court should issue a Writ of

Certiorari. Respondents respectfully request that the Petition

be denied.

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Respectfully submitted,

Gary H. BAISE

Counsel of Record

ALEXANDER M. BULLOCK

STEWART D. FRIED

ANSON M. KELLER

KILPATRICK STOCKTON, LLP

607 14" Street, NW, Suite 900

Washington, DC 20005-2018

(202) 508-5800

PETER C. ERBLAND

PAINE, HAMBLEN, COFFIN,

Brooke, & MILLER, LLP

701 Front Avenue, Suite 101

P.O. Box E

Coeur d’ Alene, ID 83816-0328

(208) 664-8115

Attorneys for Respondents