Reply Brief — Safe Air for Everyone v. Meyer

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No. 04-1055

In The

Supreme Court of the Gnited States

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SAFE AIR FOR EVERYONE,

Petitioner.

v.

WAYNE MEYER, et al.,

Respondents.

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On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

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REPLY BRIEF FOR THE PETITIONER

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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, MARK’. ELLIOTT

Washington, D.C. 20004 & McHuGu, CHTL

(202) 942-5000 123 S. Third Avenue

Sandpoint, ID 83864

(208) 263-0759

Counsel for Petitioner

*Counsel of Record

TABLE OF AUTHORITIES

Cases:

American Mining Congress v. EPA,

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American Mining Congress v. EPA,

pe Fy 115) ae Te RR a a rarer 4

City of Chicago v. Environmental Defense Fund,

ee ee I ys Fae ke nOR tbs ha das Kone e eee 9

International Paper Co. v. Ouellette,

eg Ey re re rrr errr 9

United States v. Marine Shale Processors,

oe Be Pg | rr 8

United States v. Self,

ye Ege ee kOe. re 8

Statutes and. Regulations:

Clean Air Act, 42 U.S.C. §§ 7401 et seq. ............. 6

Clean Water Act, 33 U.S.C. §§ 1251 et seq. .......... 6

Resource Conservation and Recovery Act (RCRA),

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| Perea te PEE ee ta Pe eee ore ears 6

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Miscellaneous

H.R. Rep. 94-1491, 94" Cong., 2d Sess. 3 (1976) ....... 7

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In the

Supreme Court of the United States

No. 04-1055

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

REPLY BRIEF FOR THE PETITIONER

Respondents’ brief in opposition strives mightily: for

thirty pages to obfuscate the enormity of the Ninth

Circuit’s misconstruction of the plain meaning of the

jurisdictional terms “solid waste” and “discarded

material” within the federal Resource Conservation and

Recovery Act (RCRA), 42 U.S.C. § 6903(27). Respondents

repeatedly insist that the “undis uted” and

“ uncontroverted” evidence below was that their open field

burning of crop residue was a “continuous part of the

growth process.” See, e.g., Br. in Opp. i, 11, 13, 15, 16,19 &

n.17. Yet neither the “undisputed” nature of the evidence

nor their proffered “continuous process” label renders this

case any less deserving of this Court's review. Just the

opposite. The undisputed nature of the underlying

evidence simply underscores the factually-unencumbered

nature of the legal issue presented. And, respondents’

“continuous process” legal theory simply confirms the

extent to which the decision below cannot be squared with

the plain meaning of the statutory language and would

upset EPA’s longstanding interpretation of the term

“discarded” in its hazardous waste regulations. For,

2

under respondents’ proffered theory, any industrial

activity can avoid RCRA regulation Y destroying residual

materials on-site within weeks of their generation. The

economic value of getting rid of the material would, like

the crop residue in this case, render the material's

destruction a “continuous part of the [industrial] process.”

Because the validity of respondents’ claim raises an

important legal issue about which the federal courts of

appeals are now in conflict, and does so in a case that

highlights the immediate and compelling public health

effects at stake, the petition should be granted.

1. Respondents’ brief in opposition is riddled with

errors,’ but they are absolutely correct about one thing:

the “undisputed” and “uncontroverted” nature of the

evidence in this case. There is no dispute that after

' For instance, respondents twice intimate (Br. in Opp. 5 n.5, 26) that

the lower courts found that petitioner failed to prove the existence of

an imminent and substantial endangerment. Respondents also fault

(id. at 26) petitioner for purportedly “ignor[ing] the fact that EPA has

never found that [respondents] have violated RCRA.” Both arguments

lack merit. Neither court below found the absence of an imminent and

substantial endangerment. The exclusive basis of each court's decision

was instead its holding that petitioner could not bring an action under

Section 7002, 42 U.S.C. § 6972, no matter how strong a showing of such

an endangerment, because the crop residue being burned was not a

“solid waste” as a matter of law. See Pet. App. A19, n. 15, A44. The

trial court expressly added that “the Court is not finding the smoke is

not a pollutant or a cause of the health problems affecting the citizens

in the area” and acknowledged that petitioner had offered evidence

that existing air quality standards “may not adequately protect the

public’s health.” Id. at A43, A44-A45. Respondents’ additional

reliance on the absence of an EPA finding of a RCRA violation ignores

the essential function of 7002. By its express terms, the applicability of

Section 7002 does not turn on any such violation. It provide citizens

with judicial relief from imminent and substantial endangerments

without the necessity of demonstrating an independent violation of a

specific statutory requirement of RCRA or any other law. Congress

understood that gaps in statutory implementation and enforcement

would invariably arise, notwithstanding the seemingly comprehensive

nature of federal and state environmental protection law. The

congressional purpose in enacting Section 7002 was accordingly to

provide the public with the judicial avenue necessary to secure

emergency relief in the most exigent of circumstances. See Pet. 24.

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harvesting the commercial seed, respondents dump

massive amounts of crop residue on open fields. There is

likewise no dispute that they leave that residue on the

fields for “weeks” until they burn it. See Br. in Opp. 22.

Nor is there any factual dispute that the primary and

mic benefits of that process of material

destruction result from getting rid of the crop residue.

Significantly, in this respect, respondents never dispute

our central assertion throughout the petition (Pet. 2, 8, 14),

introduced in the question presented, that “99.9 percent of

the reason for the burning was to get rid of [the crop

residue] because the material would otherwise harm crop

productivity.” Pet. i.

So too, we did not dispute in the petition (Pet. 16), and

do not dispute in this reply, respondents’ factual assertion

(Br. in Opp. 6) that the burning of the crop residue

increases “the productive life of a bluegrass field.” Of

course it does. Getting rid of the material most certainly

does “expose the plant crown to sunlight, air, and

moisture” by eliminating the residue that would otherwise

block sunlight and rain. Id. Getting rid. of the material.

does “reduce parasitic bug infection,” “reduce the growth

of fungi,” “reduce weed growth,” and “reduce the rodent

population.” Id. But here again, it accomplishes these

“benefits” by eliminating crop residue that would

otherwise provide a habitat for parasitic bugs to spread,

fungi to grow, and rodents to seek shelter.

As demonstrated in the petition (Pet. 14-17), the mere

fact that getting rid of material is economically valuable

does not mean that the material is not being “discarded.”

Indeed, were the rule otherwise, virtually any classic

waste disposal activity would fall outside the plain

meaning of “discard.” There is always an economic

advantage to getting rid of waste material. After all, that

is why businesses get rid of it.

2. Equally unpersuasive is respondents’ attempt to

escape RCRA’s — meaning by characterizing its open

field burning of crop residue as akin to a “continuous

industrial process.” See Br. in Opp. 3, 11, 13, 19 n.17.

Specifically, respondents contend that the crop residue is

“used by [respondents] as part of a continuous process of

4

the growing of Kentucky bluegrass and is never

discarded.” /d. at 23.

RCRA’s protections cannot be so easily evaded by

rhetorical legerdemain. All ongoing industrial activity is

“continuous.” And, all industrial activity, just like that of

respondents in this case, requires classic waste disposal

activity as part of its continuous industrial process.

Otherwise, the waste material being generated would, just

like respondents’ crop residue, impede the =

industrial activity. But the continuing need to discar

waste material in any ongoing business, whether by

burning or otherwise, does not immunize that solid waste

from RCRA regulation.

Instead, as elaborated by the petition (Pet. 5-6, 18-19,

20-23), EPA reached just the opposite conclusion in

construing the meaning of “solid waste” and “discarded

material.” EPA rejected a broad exemption for on-site

reuse and recycling of secondary materials EPA has

instead created only a very narrow exception from RCRA

regulation for certain kinds of “continuous industrial

processes,” typified by closed loop industrial processes

that immediately reuse those secondary materials as

effective substitutes for raw materials. See, e.g., American

Mining Congress v. EPA, 824 F.2d 1177, 1183 (D.C. Cir.

1987); American Mining Congress v. EPA, 907 F.2d 1179,

1186 (D.C. Cir. 1990). While substantial uncertainty

persists in the application of that narrow regulatory

exception to certain types of industrial processes (Pet. 28

& n.24), there is no such ambiguity concerning its

inapplicability to respondents’ activity. Under EPA's

regulations, burning for material destruction falls

completely outside any possible exclusion. And, in no

manner can open field burning be equated with a closed

loop, particularly because the justification for the latter's

regulatory exclusion is the absence of ambient

environmental risks created by activities that are “closed.”

See Pet. 6. By contrast, as illustrated by the facts of this

case, open field burning creates the kind of adverse

spillover effects that trigger the need for regulatory

oversight. As the petition explains (Pet. 6), EPA has

expressly classified such activities, regardless of their

5

recycling nature, as waste disposal activities subject to

RCRA.

3. Respondents’ invocation of a purported “continuous

process” exclusion also reveals the hypocrisy of their

repeated claim that the meaning of “solid waste” as

applied to EPA’s hazardous waste program is

“inapplicable” and “entirely irrelevant” to this action. Br.

in . 17, 24, 25. Respondents’ exclusive support for

their honey of a “continuous process” exclusion is, in fact,

court of appeals opinions reviewing the merits of EPA’s

hazardous waste regulations in general and _ their

definition of “solid waste” and “discarded material” in

particular. Hence, respondents argue that the D.C.

Circuit's ruling in American Mining Congress v. EPA, 824

F.2d 1177 (1987) that certain kinds of continuous industrial

processes fall outside the scope of EPA’s regulatory

definition of discarded material is “applicable to this

matter.” Br. in OPP’ 20 (emphasis added).

As described above, respondents are incorrect in their

effort to apply EPA’s narrow regulatory exclusion to their

open field burning, but they are completely correct in their -

acknowledgment of the relevance of the Ninth Circuit's

ruling to the scope of EPA’s hazardous waste regulation.’

As the brief in opposition concedes (Br. in Opp. 4 n.4), “if

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

waste.” For this reason, as the petition explains in detail

(Pet. 14-25), the Ninth Circuit’s narrow interpretation of

the plain meaning of the statutory definition of “solid

waste” necessarily implicates EPA’s jurisdiction over

? Respondents’ reliance on the fact that the Ninth Circuit “did not

rely upon any definitions set forth in EPA’s hazardous waste

regulations” is likewise misplaced. See Br. in Opp. 25, 29. The Ninth

Circuit did not cite directly to those hazardous waste regulations, but

the court of appeals certainly acknowledged their legal relevance. The

court repeatedly cited and discussed several court of appeals decisions

in which the only issue was the validity of EPA’s regulatory definition

of “discarded material” in its hazardous waste program. See Pet. App.

A9-A12. The Ninth Circuit characterized these judicial decisions

concerning the meaning of solid waste as applied in EPA’s hazardous

waste program as “helpful” and “relevant” to its analysis. Id. at AY,

A12.

6

hazardous wastes. If, as the Ninth Circuit ruled and

respondents continue to argue, the plain meaning of

“discarded material” cannot extend to material destruction

that occurs on an ongoing and continuous basis, much of

EPA’s ability to regulate classic hazardous waste treatment

and disposal will be eliminated.’

4. implicitly acknowledging the weakness of the

rulings below, respondents alternatively argue (Br. in Opp.

1, 3-5, 26) that their open field burning falls outside of

RCRA either because the resulting air pollution is

exclusively regulated by the federal Clean Air Act or

because Congress somehow exempted the “[a]ge-old

practice of agricultural burning” from RCRA regulation.

Neither claim, however, stands as an obstacle to review

because neither served as a basis for the ruling below. But,

in all events, both lack merit.

First, as explained in the petition (Pet. 23-24), RCRA

contains no such statutory exclusion for activities

potentially subject to Clean Air Act air emissions controls.

Not only does RCRA itself independently regulate air

emissions of certain waste management activities such as

incineration (see 42 U.S.C. § 6924(n)), but Congress

demonstrates elsewhere in RCRA that it knows how to

make clear its intent to exclude from the RCRA definition

of “solid waste” specific activities regulated by another

federal environmental protection law. See 42 U.S.C. §

6903(27) (excluding from “solid waste” certain material

permitted under the Clean Water Act).

3 As the petition also explains (Pet. 22-23), the fact that EPA has

made clear that its regulatory definition of “solid waste” is narrower

in the hazardous waste context than it is for the statute as a whole does

not, contrary to respondents’ assertion, make the ruling below less

significant. | While a narrow construction of EPA’s regulatory

definition would not necessarily affect the broader meaning of the

statutory definition of solid waste, a narrow construction of the

statutory definition of solid waste does necessarily control and limit

the reach of the regulatory definition. In this case, the court of appeals

did just that; by narrowly construing the plain meaning of the

statutory definition of “solid waste,” the court has necessarily curbed

EPA’s authority to define solid waste within its hazardous waste

program as well.

7

Nor does RCRA contain the exemption for agricultural

activity claimed by respondents.’ Although respondents

twice (Br. in Opp. 5, 26) appear to be quoting from

Congress in stating that “Congress specifically declared

that ‘agricultural products that could be recycled or reused

as fertilizers were not its concern,” those are not

Congress’s words. The quoted language is nothing more

than the court of appeals characterization of one sentence

in a legislative report. See Pet. App. A17. When,

moreover, Congress in fact spoke in the only manner that

it authoritatively can - in the words of the statute itself -

Congress leftno doubt that no such agricultural exemption

exists. RCRA expressly defines the meaning of “solid

waste” as “discarded material” including material from

“agricultural operations.” 42 U.S.C. § 6903(27). In all

events, as explained in the ipere (Pet. 17-18), EPA’s

authoritative 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.” See 40 C.F.R. §

261.4(b)(2)(i).° |

* Of course, not all agricultural burning triggers RCRA Section 7002

oversight. It occurs only where, as here, the extreme nature of that

burning produces an imminent and substantial endangerment. In this

case, the severity of the public health crisis facing residents of

Northern Idaho and those in neighboring States downwind of

respondents’ open field burning is underscored by the filing of two

amicus briefs supporting the petition. The first is by the Idaho Medical

Association, representing 1800 medical care professionals, including

1600 physicians, and the second is by the American Lung Association,

the nation’s oldest voluntary health organization. See Amicus Curiae

Br. Idaho Medical Org.; Amicus Curiae Br. American Lung Ass’n.

> 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, causing

massive plumes of smoke. The resulting particulate matter entering

human lungs is in no sense “returned to the soil as fertilizers.”

8

5. Finally, respondents’ attempt to establish the

absence of a circuit conflict is unavailing. As

demonstrated by the petition (Pet. 25-28), the Ninth

Circuit's adoption of a broad exclusion to the plain

meaning of “solid waste” for on-site material reuse and

recycling creates a wide and deep circuit conflict. It is no

matter that none of the cases that the petition cites

“involve stubble, straw, or any form o agricultural

materials.” Br. in Opp. 18. Nor does it disturb the

existence of a circuit conflict that the cases, unlike this one,

generally involve hazardous wastes. The Ninth Circuit's

ruling of law, promoted here by respondents’ assertion of

a statutory exclusion for on-site waste management

activities conducted on a “continuous” basis, is not

limited in its application to stubble or straw. It would

equally apply to all industrial and manufacturing

pee similarly susceptible to such a “continuous”

abel. Because, moreover, the legal ruling would

necessarily extend to the application of RCRA’s hazardous

waste management program, it would directly conflict

with the rulings of courts of appeals that, consistent with

EPA’s regulations, have denied the existence of any such

statutory exclusion, such as United States v. Marine Shale

Processors, 81 F.3d 1361 (5" Cir. 1996) and United States v.

Self, 2 F.3d 1071 (10" Cir. 1993), which respondents fail

even to cite, let alone discuss.

Indeed, for this same reason, respondents are

completely mistaken in asserting that “[p]etitioner has not

and cannot identify evena 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).” Br. in Opp.

30. Not so. As set forth in the petition (Pet. 5-6, 21-23),

EPA long ago concluded that its ability to protect the

public health and the environment from the dangers

presented by solid and hazardous waste was entirely

dependent on its authority to interpret RCRA’s definition

of “solid waste” as “discarded material” as extending toa

broad class of material reuse and recycling activities that

resented such risks. 7PA further identified the activity of

urning material for its destruction or its use as “fuel” as

paradigmatic examples of the kind of activity that falls

9

within the core of the Agency’s authority under RCRA. By

completely undermining EPA’s authority in_ this

fundamental respect, it cannot fairly be gainsaid that

“EPA'S sven f to protect the public’s health has been

compromised.’

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For the foregoing reasons, and those stated in the

petition, 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. 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

APRIL 2005

° As stated in the petition (Pet. 30 n.25), because of the implications

of the lower court's ruling for 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 of Chicago v. Environmental Defense Fund, 504 U.S.

906 (1992)).