# Amicus Curiae Brief — Safe Air for Everyone v. Meyer

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1361%3A5

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 544 U.S. 1018

## Text

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1361%3A5. Public record. Not legal advice.