Amicus Curiae Brief — Safe Air for Everyone v. Meyer

No. 04-1055

IN THE :

Supreme Court of the United States

SAFE AIR FOR EVERYONE,

Petitioner.

se

WAYNE MEYER, et al.,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICI CURIAE THE AMERICAN LUNG

ASSOCIATION AND THE AMERICAN LUNG

ASSOCIATION OF IDAHO/NEVADA

IN SUPPORT OF PETITIONER

DAVID T. GOLDBERG SEAN H. DONAHUE*

99 Hudson Street, 8" Fl. 2000 L St., N.W., Suite 808

New York, N.Y. 10013 Washington, D.C. 20036

(212) 334-8813 (202) 277-7085

*Counsel of Record

TABLE OF CONTENTS

RARE GP AUST EIn oiasin dvaceadncesacndaandepcdanc oun il

EPA Rem OR ENTE oo occ ioc idessannncstiseadaseevece l

SUMMARY OF ARGUMENT ...........cccccccececssccssecesesceeees 2

PR IIITE siknostiineniposiutiatind heaven 4

I. PARTICULATE POLLUTION FROM OPEN

BURNING OF AGRICULTURAL WASTES POSES A

SEVERE HEALTH HAZARD, ESPECIALLY TO

VULNERABLE POPULATIONS SUCH AS

CHILDREN, THE ELDERLY, AND THOSE WITH

RESPIRATORY DISEASES. ................ccccccsssceeeeeeees 4

II. THE DECISION BELOW IS INCONSISTENT

WITH RCRA’S PLAIN LANGUAGEAND PURPOSES

AND PRECEDENT FROM OTHER CIRCUITS AND

THREATENS TO UNDERMINE ONE OF THE

MOST IMPORTANT STATUTORY PROTECTIONS

PPR Fs WOM UU ise nis nvadencaxdostsacatsdanacatoncsincnions 9

Iii. THE ABSENCE OF REMEDIES UNDER STANT

LAW HIGHLIGHTS THE IMPORTANCE OF RCRA

SECTION 7002 AS A MEANS TO PROTECT PUBLIC

PNM ir shiscasninacecnisaecicniasimepiadetel ne ane 13

TABLE OF AUTHORITIES

Cases

American Petroleum Inst. EPA, 906 F.2d 729

(D.C. Cir. 1999). .....ssccccesesesessesensenersessensnensenenenasssssenenensees 12

Department of Transportation v. Public Citizen, 541 U.S.

T52 (2004) ....cceccssssseccsscssssesescscsescescenessssnseensensaneneessansessees 2

Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001).......... 2

Meghrig v KFC Western, Inc., 516 U.S. 479 (1996)........... 10

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

F.3d 146 (4™ Cir. 1994) ..nnccscccssscsoscescsarsserssnnenssasaensonnecsace 12

United States Marine Shale Processors, 81 F.3d 1361

(S™ Cir, 1996) ...ccssscscccssscssssccccssssnsnecesssnsscnsennsennsensosnnnessen 12

Whitman v. American Trucking Associations, Inc., 531 U.S.

AST (2001) ......cc.scseceecesssssscscsssssensneensssnseeeenssnennennesseseasenenes 2

Statutes and Regulations

AO C.F.R. 261.4 (D)(2) ......cceeesceeesssessseeeeeeeeeeeseeeeeseeeesenaeasensnes 1]

AO C.E.R. Pt. 261] ou... cceceeeeesceesseeesenneeeeeeeeeeeeeeeeeessnaeessennes 1]

42 U.S.C. 6972(a)(1)(B).......escceesceeeessnrenenereneeeeeeseeseenesensees 10

ii

a aN HEP ta teccdinsc chiens sencue ascsmcanenceeuecannett eutectic 1]

i reeitias U O e 3

Pe SAUD To SAD visicssicescsdeitaccsccsepucavdccliderunknnnsar 13

Other Authorities

Adam Babich, RCRA Imminent Hazard Authority: A Powerful

Tool for Businesses, Governments, and Citizen Enforcers,

ALI-ABA C.L.E. C883 ALI-ABA 81 ............cccceeeeeeeee. 10

Air Quality Criteria for Particulate Matter, Vol. 1,

BP ASINP-99-QO2/ZaF (2004) .......ccceesccessereascsncsconcsessesens :

American Lung Association, Estimated Lung Disease

Prevalence and Incidence by Lung Association Territory

eg | OTN EERE TE ET EE 9

D'Ippoliti et al., Air Pollution and Myocardial Infarction in

Rome: A Case-Crossover Analysis. 14 EPIDEMIOLOGY 528

Ghio et al., Concentrated Ambient Air Particles Induce Mild

Pulmonary Inflammation in Healthy Human Volunteers,

i 2 Am. J. Respir. Crit. Care Med. 981 (2000)...........0.... 6

Hong, et al., D.C. Effects of Air Pollutants on Acute Stroke

Mortality, 110 ENVIRON. HEALTH PERSPECT., 187 (2002) 6

11]

Lin et al., The Influence of Ambient ~oarse Particulate

Matter on Asthma Hospitalization in Children: Case-

Crossover and Time-series Analyses. 110 ENVIRON.

RR id PURI TOF CEN osscesiccsnsnnccnsadintariescncissvains 7

Emergency Department Visits in Atlanta, Georgia, 1993-

2000, 15 EPIDEMIOLOGY 46 (2004) .................cccsecceeceeeeeeees 6

Norris, An Association Between Fine Particles and Asthma 7%

Emergency Department Visits for Children in Seattle, 107

ENVIRON HEALTH PERSPECT 489 (1999) ........ceeeeeeseeeeeeeeee 7

On the Use of Generalized Additive Models in Time-Series

Studies of Air Pollution and Health. 3 AM. J. EPIDEMIOL

pL _0, SERERD RAISE ODO, SOO PRP OT BER DO EN Ry RPE ar Se 6

Slaughter, et al., Effects of Ambient Air Pollution on Symptom

Severity and Medication Use in Children with Asthma, 91

ANN. ALLERGY ASTHMA IMMUNOL. 346 (2003)..............0:. 7

Tolbert et al., Air Quality and Pediatric Emergency Room

Visits for Asthma in Atlanta, Georgia, 151 AMJ

NE Fe CII ooo ca dhcacphnsnceracsncssentantnnratmedasasnsnennanees 7

Tsai et al., Evidence for an Association Between Air Pollution

and Daily Stroke Admissions in Kaohsiung, Taiwan. 34(11)

Ne ae TNO soscs dachtran sem ancusinssaminseeiancacnamticrancnnnntasannsan 6

Van Den Eeden et al., Particulate Air Pollution and

Morbidity in the California Central Valley: A High

Particulate Pollution Region, FINAL REPORT TO THE

CALIFORNIA AIR RESOURCES BOARD, CONTRACT 97-303,

GN Eo Be iii iceeccrersenetceeieeternerdocaapeneiasneriadtanen 7

1V

STATEMENT OF INTEREST!

The American Lung Association ("ALA") is one of the

nation's oldest voluntary health organizations, with a national

office in New York City and affiliate associations throughout

the country. Founded in 1904 to fight tuberculosis, the ALA

now fights lung disease in all its forms, with an emphasis on

asthma, tobacco control and environmental health. The ALA is

funded by contributions from the public, along with gifts and

grants from corporations, foundations and government agencies.

Since the 1960s, the ALA has supported national and local

initiatives to combat smoking and reduce air pollution in order

to reduce these threats to lung health. Recently, the ALA led

initiatives to persuade the Environmental Protection Agency to

tighten to regulations to reduce ambient levels of ozone and

particulate air pollution, including tighter emissions standards

for diesel trucks and buses and for diesel engines used in

construction and other off-road equipment. In addition to ALA’s

legislative, litigation, public education, and research efforts, the

ALA in 2004 published its annual survey of air pollution in the

United States, entitled THE STATE OF THE AIR: 2004. That study

demonstrates that over 81 million people in the United States

live in areas where there are dangerous levels of short-term

particulate matter pollution, the form of pollution at issue (in an

especially acute form) in the present case, and catalogues recent

scientific research concerning the effects of such pollution on

human health.

1 Pursuant to Supreme Court Rule 37.6, no counsel for any party authored

this brief either in whole or in part. No persons other than counsel for the

amicus made any monetary contributions to its preparation or submission.

Both Petitioner and Respondents consented to this filing; their letters of

consent are being submitted with the brief.

The ALA has appeared in this Court as amicus curiae in

numerous cases involving air quality and public health issues.

E.g., Department of Transportation v. Public Citizen, 541 U.S.

752 (2004): Lorillard Tobacco Co. v. Reilly, 533 U.S. 525

(2001); Whitman v. American Trucking Associations, Inc., 531

U.S. 457 (2001).

The American Lung Association of Idaho/Nevada, an affiliate

of the ALA through a contractual relationship, is headquartered

in Reno, Nevada, with offices Las Vegas, Nevada, and Boise,

Idaho. The association is dedicated to promoting lung health

and preventing lung disease. In addition to work on tobacco

control and asthma, the American Lung Association of

Idaho/Nevada provides education and advocates for clean air

and measures that reduce threats to and improve conditions for

the respiratory and pulmonary health and welfare of the people

in Idaho and Nevada. The association filed an amicus brief in

the court of appeals supporting the position of petitioner Safe

Air for Everyone.

SUMMARY OF ARGUMENT

In this brief, amici wish to highlight the severe health risks

associated with the form of pollution at issue in this case:

particulate pollution resulting from the open burning of

Kentucky bluegrass plants after the seed for which the plants are

harvested has been removed. As numerous scientific studies

have demonstrated, acute exposure to fine particulate pollution

like that produced by respondents’ activities poses a variety of

serious health problems. These include exacerbating asthma in

children; increased hospitalizations for patients suffering from

respiratory diseases; inflammation of lung tissue in healthy

adults; increased numbers of heart attacks, especially among the

elderly, and death from respiratory and cardiovascular causes.

The extensive record below poignantly illustrates - in the

2

testimony of many treating physicians, public health experts,

and dozens of North Idaho residents — the grave suffering that

acute particulate pollution causes.

By any measure, the form of pollution at issue constitutes a

severe health hazard - one that falls squarely within the letter

and purpose of the “imminent and substantial danger” provision

of Section 7002 of the Resource Recovery and Conservation Act

(“RCRA”), 42 U.S.C. § 6972(a)(1 )(B). In addition to permitting

the health hazards caused by widespread burning of bluegrass

residues, the Ninth Circuit’s decision in the case involves a stark

misreading of one of the most important federal environmental

Statutes, a reading that conflicts with the decisions of numerous

other courts of appeals and seriously weakens RCRA throughout

the country’s largest judicial circuit.

The panel majority’s ruling that the bluegrass straw that

respondents burn has not been "discarded" for purposes of

RCRA's definition of "solid waste" — even thou gh the conceded

primary purpose of the burning is to dispose of grass residue that

must be removed from fields before new crops can grow -

represents a bad misreading the statute. If left in place, the court

of appeals’ construction could exempt from RCRA’s coverage

all manner of waste management practices regardless of their

effects on human health, on the bare excuse that the method of

disposal might be said to produce some incidental benefit other

than getting rid of the waste (such as providing landfill or

generating heat or power).

Section 7002 was deliberately crafted to provide a broad and

flexible remedy to address extreme hazards. It does not require

the identification of a violation of particular statutory or

regulatory requirements, but is simply concerned with providing

relief from certain extreme threats to human health and the

3

environment. This case, which features a severe harm to public

health that has not been effectively addressed by government

regulators, demonstrates Congress's wisdom in enacting such a

provision. Review by this Court is warranted because the panel

majority's crabbed interpretation threatens to emasculate this

important tool for addressing serious public health hazards.

Finally, we observe that Idaho law provides little protection

against the pollution at issue here. Respondents’ practices have

been effectively exempted from state nuisance law, and state

regulators have proven unable to prevent burning from causing

the widespread health problems documented in the record here.

ARGUMENT

I. PARTICULATE POLLUTION FROM OPEN

BURNING OF AGRICULTURAL WASTES POSES

A SEVERE HEALTH HAZARD, ESPECIALLY TO

VULNERABLE POPULATIONS SUCH AS

CHILDREN, THE ELDERLY, AND THOSE WITH

RESPIRATORY DISEASES.

As the record from the proceedings in the district court

vividly demonstrates, the open-field burning of bluegrass

residues releases very high concentrations of particulate

pollution. See Pet. App. A60. The U.S. Environmental

Protection Agency has explained that particulate matter is a

"mixture of microscopic solids and liquid droplets suspended in

the air" and consists of a number of different components

including acids, chemicals, metals, soils, dust, and allergens like

pollen.” Particulate pollution causes a broad range of health

Particulate Pollution and Your Health, available at http://

www.epa.gov/airnow/particle/pm-color.pdf (last viewed March 31, 2005);

4

problems:

Short-term exposure to particle pollution can cause

premature death. Those deaths can occur on the very

day that particle levels are high, or within one to two

months afterwards. Unfortunately, particle pollution

does not just make people die a few days earlier than

they might otherwise: these are deaths that would not

have occurred without the pollution. Particle pollution

also diminishes lung function, causes greater use of

asthma medications, and increases rates of school

absenteeism, emergency room visits and hospital

admissions. Other adverse effects can be coughing,

wheezing, cardiac arrhythmias and heart attacks.”

The form of open burning at issue here produces “fine”

particulate matter, which presents especially serious public

health problems. E.g.,CA App. 131-44 (declaration of Richard

B. Schlesinger, PhD, concerning impacts of spikes in PM 10 and

PM 2.5 as a result of bluegrass residue burning). As stated by

pulmonologist David P. York, “the health impact of airborne

particles increases as those particles get smaller. This is true

because particles are able to pass through the natural filtration

mechanisms of the upper airway and penetrate deeper into the

lower airway and lungs.” C.A. App. 84.°

see also EPA, Air Quality Criteria for Particulate Matter, Vol. 1, pp. 2-2, 2-

3, EPA/600/P-99-002/2aF (2004).

* STATE OF THE AIR 2004 at 48.

* See Environmental Protection Agency, Particulate Pollution and Your

Health, available at http:// www.epa.gov/airnow/particle/pm-color.pdf (last

viewed March 31, 2005) (“The size of particles is directly linked to their

potential for causing health problems. Small particles less than 10

micrometers in diameter pose the greatest health problems, because they can

get deep into your lungs, and some may even get into your bloodstream.”);

5

= eatin dime te Mee oe + my

A substantial body of recent public health research

chronicles the effects of short-term increases in particulate

pollution, including:

death from respiratory and cardiovascular causes,

. ° 5

including strokes;

increased numbers of heart attacks, especially among

the elderly and people with heart conditions;°

inflammation of lung tissue in young, healthy adults;’

increased hospitalization for cardiovascular disease;®

increased emergency room visits for patients suffering

from acute respiratory ailments;”

increased hospitalization for asthma among children,’°

STATE OF THE AIR: 2004 at 46.

> See Dominici, et al., On the Use of Generalized Additive Models in Time-

Series Studies of Air Pollution and Health. 3 AM. J. EPIDEMIOL 193 (2002);

Hong, et al., D.C. Effects of Air Pollutants on Acute Stroke Mortality, 110

ENVIRON. HEALTH PERSPECT. 187 (2002); Tsai, et al., Evidence for an

Association Between Air Pollution and Daily Stroke Admissions in

Kaohsiung, Taiwan. 34(11) STROKE 2612 (2003).

. D'Ippoliti, et al., Air Pollution and Myocardial Infarction in Rome: A Case-

Crossover Analysis. 14 EPIDEMIOLOGY 528 (2003).

: Ghio, et al., Concentrated Ambient Air Particles Induce Mild Pulmonary

Inflammation in Healthy Human Volunteers, 162 AM. J. RESPIR. CRIT. CARE

MED. 981 (2000).

' Metzger et al., Ambient Air Pollution and Cardiovascular Emergency

Department Visits in Atlanta, Georgia, 1993-2000, 15 EPIDEMIOLOGY 46

(2004).

* Van Den Eeden, et al., Particulate Air Pollution and Morbidity in the

California Central Valley: A High Particulate Pollution Region, FINAL

REPORT TO THE CALIFORNIA AIR RESOURCES BOARD, CONTRACT 97-303,

July 12, 2002.

1 in, etal., The Influence of Ambient Coarse Particulate Matter on Asthma

Hospitalization in Chiidren: Case-Crossover and Time-series Analyses. 110

ENVIRON. HEALTH PERSPECT. 575 (2002); Norris, An Association Between

6

and

increased severity of asthma attacks in children.!!

The record from the proceedings below paints a striking

picture of the extent of the health problems caused by smoke

from respondents’ burning of bluegrass stalk residues.

Numerous doctors testified about the effects of the smoke on

their patients. For example, Dr. John H. Strimas, who directs the

North Idaho Allergy, Asthma and Immunology Center, stated

that “exposure to smoke from grass residue burning frequently

aggravates the existing condition of my patients with pulmonary

sensitivities, pulmonary illnesses, and upper respiratory

disorders” and that “the aggravation caused by smoke from

residue burning is often the trigger for episodes of acute

respiratory distress that range in severity from itritating and

uncomfortable to dangerous and life threatening.” C.A. }- R.

104. Dr. Joyce Gilbert, a pediatrician practicing in Sandpoint,

Idaho, stated that:

The adverse health effects caused by grass residue

burning on children can be severe, scary, and traumatic

and cause pain, suffering and panic. The effect on small

children is especially bad, in that these children often do

not understand what is causing their coughing and

Fine Particles and Asthma Emergency Department Visits for Children in

Seattle, 107 ENVIRON HEALTH PERSPECT 489 (1999): Tolbert et al.. Air

Quality and Pediatric Emergency Room Visits for Asthma in Atlanta,

Georgia, 151 AMJ EPIDEMIOL. 798 (2000).

7 Slaughter, et al., Effects of Ambient Air Pollution on Symptom Severity and

Medication Use in Children with Asthma, 91 ANN. ALLERGY ASTHMA

IMMUNOL. 346 (2003). Further information about the health effects of acute

particulate pollution may be found at STATE OF THE AIR, at 49: HEALTH

EFFECTS OF OUTDOOR AIR POLLUTION Part 1, at 29-30: PM Criteria at 1-1 i,

2- 22.

wheezing, their great difficulty breathing, and the

tightness in their chest that they are experiencing. * * *

Newborn babies are at even higher risk because their

airways are smaller and more sensitive.

C. A. App. 62; see alsoC.A. App. 200. Pulmonologist Michael

M. McCarthy testified that smoke from the grass residue burning

“aggravates the condition of my patients with pulmonary illness”

and can trigger “episodes of acute respiratory distress that range

in severity from irritating and uncomfortable to dangerous and

life threatening.” C.A. App. 67. And Dr. Henry D. Covelli

declared that “[a]s Respiratory Care Medical Director of

Kootenai Medical Center in Coeur D’Alene Idaho, I have

witnessed the immediate death of at least one patient who was

exposed to smoke from North Idaho grass residue burning,

experienced immediate respiratory difficulty, and expired as a

result of an exacerbation of his respiratory disease.” C.A. App.

92.

Dr Richard B. Schlesinger, an inhalation toxicologist who is

a leading expert on the effects of inhaled particulate matter on

the human respiratory tract, testified that:

the adverse respiratory health impacts reported by residents

of North Idaho and their treating physicians following

exposure to smoke from grass field residue burning are

consistent, based on my scientific expertise, with what

would be expected following acute exposures to fine

airborne PM, such as that emitted by agricultural burning.

CA App. 134. See also C.A. App. 131, 135, 210-18.

Testimony from individual residents of North Idaho

residents painted a picture of the hardships respondents’

ieee gears

activities have caused for members of the public, especially for

those most sensitive to particulate pollution - the young, the old,

and those with respiratory diseases.'* Trina Heisel testified that

the burning forced her to take her daughter, who suffers from

cystic fibrosis and who experienced “terrible” symptoms during

burning season, to leave the area entirely. ER 180. Laura Fowler

testified about the effects of the smoke on her asthmatic

daughter, stating that it left her “[u]nable to breathe” or engage

in “normal activities that a child would do, go outside, ride a

bike[.]" ER 196. Lawrence Bud Moon, the 76-year-old mayor

of East Hope, Idaho, testified that the smoke caused him “severe

problems with breathing.” ER 206.

II. THE DECISION BELOW IS INCONSISTENT

WITH RCRA’S PLAIN LANGUAGE AND

PURPOSES AND WITH PRECEDENT FROM

OTHER CIRCUITS AND THREATENS TO

UNDERMINE ONE OF THE MOST IMPORTANT

STATUTORY PROTECTIONS FOR PUBLIC

HEALTH.

Section 7002 of RCRA allows “any person” to bring an

action against

any past or present generator, * * * who has contributed

or who is contributing to the past or present handling,

5 The pulmonary diseases that make exposure to particulate pollution like

that in question here are widespread. For example, in Idaho alone, a state

with a population of just over a million, more than 78,000 children and over

195,000 adults suffer from asthma. Another 113,500 Idahoans suffer from

chronic bronchitis. See American Lung Association, Estimated Lung Disease

Prevalence and Incidence by Lung Association Territory at 15 (September

2004) (available at http://www.lungusa.org/atf/cf/%7B7A8D42C2-FCCA-

4604-8 ADE-7F5DSE762256%7D/ESTPREV 2004.PDF) (last visited April

4, 2005).

storage, treatment, transportation, or disposal of any

solid or hazardous waste which may present an

imminent and substantial endangerment to health or the

environment.

42 U.S.C. § 6972(a)(1)(B). It was “designed to provide a

remedy that ameliorates present or obviates the risk of future

‘Imminent’ harms[.]” Meghrig v KFC Western, Inc., 516 U.S.

479, 486 (1996). Given the evidence noted above concerning

the severe harms caused by burning of residue grass — and the

far more extensive presentations in the record - this would seem

to be a paradigm instance in which injured parties could use

Section 7002 to obtain relief.’°

The court of appeals’ contrary conclusion is based upon an

erroneous interpretation of the key RCRA junisdictional term.

“solid waste.” The majority construed that term not to embrace

the grass residue at issue here on the theory that the residue was

not “discarded” for purpose of the statutory definition, 42 U.S.C.

§ 6903(27). See Pet. App. A15-A18. The court reasoned that the

farmers’ use of the ash from burning the residue meant that the

burning had “farming benefits,” even though it was conceded that

3 See United States v. Hooker Chemicals & Plastics Corp., 749 F.2d 968,

988 (2d Cir. 1984) (“in amending the emergency powers provision of the

RCRA in 1980, the Senate Report explained that the emergency powers

provision ‘is essentially a codification of common law public nuisance

remedies,’ emphasizing, however, that it ‘should not be construed solely with

respect to the common law’ because some concepts ‘are meant to be more

liberal than their common law counterparts”) (quoting S.Rep. No. 172, 96th

Cong., 2d Sess. 5 (1980), reprinted in 1980 U.S.Code Cong. & Ad.News

5019, 5023); see also Adam Babich, RCRA Imminent Hazard Authority: A

Powerful Tool for Businesses, Governments, and Citizen Enforcers, ALI-

ABA C.L.E. C883 ALI-ABA 81, 95 n.80 (noting “public nuisance-like”

character of the cause of action under § 6972(a)(1)(B), which does not

require that activities creating the hazard be independently illegal under

RCRA or any other law);

10

the overwhelmingly predominant reason for burning the residue

was to clear the fields of bluegrass "straw" so that sunlight and

water could reach the seed. The court’s reasoning has no support

on the face of the statute - or in the ordinary meaning of the term

“discarded.”!* As petitioner demonstrates (Pet. 25-28), it is also

inconsistent both with decisions of at least five other courts of

appeals, and with EPA’s definition of “solid waste” in EPA’s

RCRA Subchapter C regulations, see 40 C.F.R. Pt. 261, a

definition that is intended to be significantly narrower than the

statutory definition. EPA’s regulations expressly cover wastes

that are “returned to the soil as fertilizers,” 40 C.F.R. §

261.4(b)(2). As petitioner demonstrates, because the opinion

below is an interpretation of the RCRA’s key jurisdictional term

“solid waste,” it imperils EPA’s regulations governing RCRA’s

application to hazardous waste.

Thus, the court of appeals’ narrow interpretation of “solid

waste” — a key term not only for citizen actions under Section

7002 but for also for the hazardous waste provisions of

Subchapter C - threatens to disrupt RCRA enforcement

generally. If burning the residue grass at issue here is considered

not to be a form of “solid waste” disposal, then many other

activities that pose serious risks to the public - and are primarily

intended to “get rid of” substances - could be exempted from

RCRA regulation and remedies simply because the owner of the

substance is able to claim some incidental use for the resulting

ash - whether as fertilizer, as a traction agent for icy roads, or

- See WEBSTER’S THIRD INTERNATIONAL DICTIONARY, 644 (1986) (“to drop,

dismiss, let go, or get rid of as no longer valuable”; “Discard indicates

dispensing with, letting go of, getting ride of, as not immediately useful; it is

not a forceful word and may connote only the mild action of getting rid of a

playing card from one’s hand ([‘Jhe sorted and resorted his cargo, always

finding a more necessary article for which a less necessary had to be

discarded[‘] - Willa Cather)”).

1]

simply as landfill.

As the dissenting judge persuasively explained, Pet. App. A24

n.6, there is also no merit to the Ninth Circuit majority’s novel

and counter-intuitive suggestion that the determination of whether

secondary material has been discarded is to be made

“independenu.,’ of how the materials are being handled.” Pet. App.

A17n.13. As other courts of appeals have recognized, it is often

essential to examine how secondary materials are “handled” to

determine whether they are “solid waste” for RCRA. purposes.

See, e.g., Owen Electric Steel Co. of South Carolina v. Browner,

37 F.3d 146, 149 (4" Cir. 1994) (finding manufacturer not

entitled to recycling exemption because “[t]he slag is not

immediately used in Owen's production process; rather, the slag

must sit, untouched, for some six months before it is sold to other

entities.”); United States v. Marine Shale Processors, 81 F.3d

1361, 1366 (5" Cir. 1996); American Petroleum Inst. v. EPA, 906

F.2d 729, 740-42 (D.C. Cir. 1999).

12

eas

III. THE ABSENCE OF REMEDIES UNDER STATE

LAW HIGHLIGHTS THE IMPORTANCE OF RCRA

SECTION 7002 AS A MEANS TO PROTECT PUBLIC

HEALTH.

Whatever avenues of redress are afforded by federal law,

one might well expect that traditional common law remedies

such as nuisance and trespass would be available under state law

for health and environmental harms as grave as those involved

in this case. But in the case of the Idaho bluegrass residue

burning at issue here, that expectation would be wrong.”

As a result of the pattern of widespread health impacts

discussed above, northern Idaho residents brought a class action

in June 2002 against many of the respondents here, asserting

claims based on nuisance and trespass. After a lengthy hearing

at which numerous medical and public health experts and state

official from Idaho and Washington testified, the state trial court

found, inter alia, that the smoke emitted by defendants’ burning

of bluegrass residue had caused “these citizen plaintiffs to have

increased medical problems, some very serious, which in turn

causes some of them to hole up in their homes or to leave the

area completely during the period of burning.” Pet. App. in

Moon v. North Idaho Farmers Ass hn, No. 04-594, at 135a-139a.

On the basis of this and similar findings the trial court

preliminarily enjoined defendants from burning. While the

Moon case was pending, however, the defendant bluegrass

farmers -- one of whom was also a state legislator -- persuaded

the Idaho legislature to enact Idaho Code § 22- 4803A(6),

™ Although Idaho does impose some regulatory restrictions upon open

burning of bluegrass residue, see Idaho Code § 4803 (“smoke management”

program), those restrictions have proven wholly inadequate to prevent

serious and widespread harms to the public health.

13

which provided that crop residue burning of the very sort at

issue in the case “shall not constitute a private or public

nuisance or constitute trespass.”’°

The unavailability of state remedies even in the face of dire

harms like those here demonstrates the wisdom of Congress’s

decision to include, in RCRA, a broad remedy for citizens

facing “imminent and substantial” health hazards. This Court

should grant certiorari to ensure that that remedy may be given

effect.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

DAVID T. GOLDBERG SEAN H. DONAHUE*

99 Hudson Street, g” Fl. 2000 L St., N.W., Suite 808

New York, N.Y. 10013 Washington, D.C. 20036

(212) 334-8813 (202) 277-7085

*Counsel of Record

April 2005

'© Diaintiffs in Moon attacked the new legislation on the bases that the state had

effectively imposed a servitude on their land, necessitating compensation, and

that the law violated a state constitutional prohibition against “special

legislation.” The Idaho Supreme Court, with one justice dissenting, rejected

these challenges. Moon v. North Idaho Farmers Ass n, 96 P.3d 637 (2004),

cert. denied, 125 S. Ct. 1299 (Feb. 22, 2005).

14

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