City of Chicago v. Environmental Defense Fund – Oral Argument – January 19, 1994

Media for City of Chicago v. Environmental Defense Fund

Audio Transcription for Opinion Announcement – May 02, 1994 in City of Chicago v. Environmental Defense Fund

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William H. Rehnquist:

We’ll hear argument now in Number 92-1639, the City of Chicago v. The Environmental Defense Fund.

Mr. Rosenthal.

Lawrence Rosenthal:

Mr. Chief Justice and may it please the Court:

Incinerators that recover energy from the burning of municipal solid waste, known as resource recovery facilities, received an exemption from Federal hazardous waste regulation under a 1984 amendment to the Resource Conservation and Recovery Act.

The question presented here is whether that exemption ceases to have effect once these incinerators actually burn the waste sent there for incineration.

The 1984 amendment is entitled, Clarification of Household Waste Exclusion.

On its face, it requires some understanding of what the household waste exclusion was, and what Congress was seeking to clarify in 1984.

Accordingly, I will begin by examining the regulatory framework that confronted Congress when it enacted the statute, and I will then discuss the statute’s purpose, history, and its text.

I will leave the question of what deference is owed to the views of the Environmental Protection Agency on this statute to the United States.

In 1976, Congress first enacted RCRA, creating a comprehensive scheme for the disposal of solid waste.

RCRA divides solid waste into two categories, hazardous, and nonhazardous.

It creates a far more demanding, expensive, and cumbersome scheme for the disposal of hazardous waste.

In the statute, Congress delegated to the Environmental Protection Agency the authority to define by regulation what substances should be deemed hazardous.

Household waste poses special problems within this regulatory framework.

Although the vast majority of household waste is nonhazardous, occasionally people do throw away things that technically qualify as hazardous… the used flashlight battery or the occasional can of paint thinner.

Sandra Day O’Connor:

Mr. Rosenthal, you seem to acknowledge, then, that at the end of the day the ash may contain material that under the ordinary definition would be considered hazardous waste.

Lawrence Rosenthal:

Given the posture we are in today, yes, I think the Court–

Sandra Day O’Connor:

Okay.

Lawrence Rosenthal:

–has to take that as given.

Sandra Day O’Connor:

And would you explain the scope of your position?

You represent the city which operates its own resource recovery facility.

Lawrence Rosenthal:

That’s correct.

Sandra Day O’Connor:

And what does it do with the ash at the end of the day?

Lawrence Rosenthal:

The city contracts first with a hauler to take the ash to a landfill and second with the landfill, at which the ash is disposed.

Sandra Day O’Connor:

And the landfill is out of State.

Lawrence Rosenthal:

At one point in this case it was.

Currently, the ash is being disposed of at lined monofill in Joliet, Illinois.

Sandra Day O’Connor:

Not owned or operated by the city.

Lawrence Rosenthal:

That’s correct.

Sandra Day O’Connor:

A private landfill.

Lawrence Rosenthal:

It has a contract with the city.

Sandra Day O’Connor:

Now, do you take the position that the plain language of the statutes mean that there is an exemption all the way down the line, even in the private landfill and with regard to what the owner of the private landfill does with the ash?

Lawrence Rosenthal:

I do, Justice O’Connor, and the reason for that is because that is in fact what the household waste exclusion was when originally promulgated, and what was continued by Congress–

Sandra Day O’Connor:

I ask that because the statute, 6921, refers to the exclusion for the resource recovery facility, and what it does in treating, storing, disposing, or otherwise managing the waste, and so do you think it’s clear from the plain language of the statute that the exemption extends to down the line private landfills?

Lawrence Rosenthal:

–I think it is both from the language of the statute and when it’s placed in the context of what Congress was trying to clarify.

Of course, in–

Sandra Day O’Connor:

Well, as I understood it, you make a plain language argument, and I just wondered what the plain language was that you thought covered the private landfill.

Lawrence Rosenthal:

–Well, it is the deeming clause, because the statute says that the resource recovery facility shall not be deemed to be treating, storing, disposing or otherwise managing hazardous waste.

If you think that the hazardous waste regulations apply when the garbage arrives at the landfill because of the fortuity that we don’t use our own landfill, then at that point, as they dump the waste off the truck, you would be deeming the city, or EDF does deem the city to be disposing of hazardous waste at that point, but the statute prohibits that result.

It says that a resource recovery facility shall not be deemed to be disposing of hazardous waste, so–

David H. Souter:

It seems to me you wouldn’t be deeming it to dispose of hazardous waste because it was disposing of hazardous waste.

You don’t have to deem a darn thing.

What the statute is saying is that at least at a certain stage they shall not be deemed.

The statute is written in such a way as to say, don’t treat them as if they are doing this.

Lawrence Rosenthal:

–That’s correct, and what that means, I take it, is that if you think that the resource recovery facility… in this case EDF argues that as the employees of the resource recovery facility are sweeping out the ash from the incinerator and trying to figure out what to do with it, the employees are supposed to treat that ash as hazardous waste and ship it and dispose of it under those regulations.

David H. Souter:

Well, there may be a period of uncertainty as to when one regime ends and another begins, but I don’t see how you can read this as defining the ash as nonhazardous waste as opposed to directing that the recovery facility shall not deemed to be dealing with it, and if you do not read this… and in its plain language it is not a definition of hazardous waste, nor is it a provision saying ash is not, then at most, it seems to me, you can get by plain language is that you don’t treat the ash as hazardous waste until it leaves the hands of the recovery facility, but at that point, I don’t see how anything in this statute by its terms covers the ash.

Lawrence Rosenthal:

Of course, the only defendant in this case is the resource recovery facility, because I take it even EDF doesn’t think that Congress intended to create an exemption where if the resource recovery facility disposes of the material on site at its own landfill, adjacent to the incinerator, Congress would treat all that as exempt, but the fortuity that you instead use an independent contractor off-site, that would trigger a different result.

EDF apparently doesn’t even think that distinction makes any sense, and I think especially when you put the plain language into the regulatory context, it becomes quite clear, because when EPA defined by regulation what was hazardous in 1980, it bowed to the practical reality.

Ruth Bader Ginsburg:

Mr. Rosenthal, one question about this chronology.

At what point did the testing occur that showed that there was a risk of contamination to groundwater because the residue might leach out of the landfill?

That was not… that testing occurred, didn’t it, after this original EPA regulation that you say drives the whole… first the regulation, and then the statute, and then EPA’s subsequent interpretation?

Lawrence Rosenthal:

EDS did the testing.

The city has never–

Ruth Bader Ginsburg:

When did that occur chronologically?

Was it after the original EPA regulation?

Lawrence Rosenthal:

–It was.

It was from 1981 to 1987, the tests relevant to this facility.

Ruth Bader Ginsburg:

So was it appreciated that the ash, as distinguished from the household waste that went to the incinerator, would have hazardous potential?

Lawrence Rosenthal:

The city had always taken the position that the ash was not hazardous waste under the EPA regulation.

EDF questioned that, and that led to the test that in turn led to this litigation.

Lawrence Rosenthal:

In 1980, when the regulation was promulgated, it said that the entire household wastestream was excluded, up to and including the ash, and it was explicit.

EPA was explicit in excluding the ash.

Ruth Bader Ginsburg:

But your answer is that the testing occurred after that initial exclusion, not before.

Lawrence Rosenthal:

That’s correct.

Then, in 1984, this statute was enacted.

The statute, of course, is entitled, “Clarification of Household Waste Exclusion”.

Not “modification”, or “repudiation”… “Clarification of Household Waste Exclusion”.

Congress expressly referred to and incorporated an existing construct, which was a wastestream exemption.

Sandra Day O’Connor:

Well, Mr. Rosenthal, from ’85 to ’92, was the official position of the EPA to the effect that the ash was subject to subtitle C regulation?

Lawrence Rosenthal:

The official position in… EPA put out a statement in 1985 which by 1987, when Mr. Porter testified before Congress they were already saying, our position doesn’t really make a lot of sense.

Sandra Day O’Connor:

Well, is your answer yes, or no?

Lawrence Rosenthal:

I’m not sure.

I think my answer is that their official position was that they saw no intent on the statute to reach the ash, but that they weren’t going to do anything about it.

Sandra Day O’Connor:

And what happened during that interval?

Did they enforce subtitle C?

Did the city comply with subtitle C?

Lawrence Rosenthal:

Never.

The city never complied with subtitle C, took the position throughout that period of time that it wasn’t applicable, the United States never brought an enforcement action against the city or any other resource recovery facility, and after the congressional moratorium on new EPA regulations expired we found Administrator Reilly’s ruling on this subject, which repudiated the 1985 statement.

In short, given this context, a principle of statutory construction comes into play which I think is quite useful in resolving this case, that principle being that Congress is deemed to approve of existing administrative practices or constructions when it legislates absent clear evidence to the contrary, and the reason I think that principle is useful is because when I look for the clear evidence to the contrary, I cannot find any.

I cannot find any in the plain language of the statute, which again is entitled, “Clarification of Household Waste Exclusion”.

Congress thought it was clarifying something that was not previously clear, and in two respects undisputed in this case, it was clarifying.

William H. Rehnquist:

How broad is this principle of which you speak, Mr. Rosenthal, that Congress is deemed to approve existing administrative construction when it legislates?

I take it it’s when it legislates about the precise matter with which the administrative construction dealt?

Lawrence Rosenthal:

And of course, we need go no further in this case than that.

William H. Rehnquist:

But first answer my question, will you, before commenting on it?

Lawrence Rosenthal:

In cases like North Haven Board of Education v. Bell, the Court has applied this principle even when the Congress amends other portions of the statute, but not the pertinent portion of the statute.

Here, of course, we need not guess, because Congress explicitly put into the statute the Household Waste Exclusion.

It is–

David H. Souter:

Well, may I interrupt you there?

You say Congress explicitly put into it.

David H. Souter:

Was… I don’t have the text of the prior EPA reg in front of me.

Was the EPA reg a deemer clause which referred to the resource recovery facility as not being deemed to be dealing in hazardous waste?

Lawrence Rosenthal:

–It was not, because it was issued pursuant to EPA’s delegated power to define what hazardous waste is, so it is written in terms of the definition of hazardous waste.

It does not use the word, “deeming”, but I do take it that when Congress tells us that what it thinks it is doing is clarifying the Household Waste Exclusion, Congress should be taken at its word.

David H. Souter:

Well, maybe… Congress sometimes engages in the use of euphemism, and if in fact what Congress did was to come up with a text which was in some significant way different from what it purported to be clarifying, we’ve got to give some significance to the text, and it seems to me that one big significance is, EPA said, ash isn’t hazardous.

Don’t treat it that way.

Congress is saying, when a recovery facility is doing certain things, it will not be deemed to be… I.e., pretend it’s not… dealing with hazardous waste.

That’s a very different provision.

Lawrence Rosenthal:

Well, when you start… I think it is appropriate to take Congress at its word.

Congress knows how to–

David H. Souter:

Well, which word, the word of the text, or the word of the title?

Lawrence Rosenthal:

–Well, of course, Congress enacted–

David H. Souter:

What if we find that the plain language of the text is less a clarification than a modification?

Lawrence Rosenthal:

–Well, of course, Justice Souter, Congress enacted all those words, and I think they all have to be taken at their word.

We start with, I think, a strong presumption that Congress should be read simply to be clarifying the existing regulatory construct.

If we can find clear evidence further down in the statute that Congress misrepresented the statute in its title, maybe there would be a different result, but I don’t think there is clear evidence further down.

William H. Rehnquist:

Well, aren’t you confusing ratifying with clarifying?

Lawrence Rosenthal:

I’m trying not to, because it is clear that Congress did clarify in two respects that are not in dispute, which I think is one of the reasons why the language does not precisely track EPA’s household waste exclusion.

William H. Rehnquist:

But if you say, if Congress says we’re clarifying something, that suggests that the meaning may have been indeterminate before, and that Congress may be giving it at least a partially new meaning, whereas if you say ratifying, that means that Congress is approving the previous administrative construction.

Lawrence Rosenthal:

I quite agree, and it is our view that Congress was clarifying, not ratifying.

In fact, it was quite unclear under EPA’s household waste exclusion whether, if a facility also received nonhazardous commercial and industrial waste in addition to household waste, it would still qualify for the household waste exclusion.

That was entirely unclear.

Congress clarified that by making it explicit, broadening the exemption to say, if you also except nonhazardous commercial and industrial waste, you qualify.

Absent some very clear indication that Congress was not serious and should not be taken at its word when it said it was clarifying, Congress should not be deemed to have worked such a fundamental and far-reaching change in the prior regulatory framework, and indeed, if one is looking for evidence of an intent to change the law… not to clarify it, but to change, to dramatically narrow the previous household waste exclusion, one certainly cannot find it in the legislative history.

In fact, EDF’s position on the legislative history, of course, is ignore it, because if you do look at the legislative history, it addresses this problem clearly and expressly, and far from evincing an intent to dramatically narrow the exclusion, it embraces the exclusion.

It states that it recognizes it is a wastestream exclusion, goes on to say that resource recovery facilities should be fit within the household waste exclusion, and it further states that economic impediments to the success of the resource recovery process should be removed.

So if you did enforce at the landfill, if you will, you would have created a huge economic disincentive to the resource recovery process without any evidence that Congress intended to create this massive new regulatory burden.

Anthony M. Kennedy:

The statute, counsel, has two definitions, a definition of disposal, and a definition of hazardous waste generation.

In your view, are these discrete categories or is there some overlap between the two?

Lawrence Rosenthal:

I’m not sure I understand your question, Justice Kennedy.

Anthony M. Kennedy:

Well, it seems to me… let me put it this way… that it’s essential to your case to show that the facility that treats the household waste is disposing of the waste when it stores the ash on-site, or when it ships it off, but then in other instances, other facilities would be said to be generating a hazardous waste when it did that.

Lawrence Rosenthal:

Well, of course, hazardous disposal is a defined term.

It says,

“putting the waste in land or water so that it could be exposed to the environment. “

and in my view there is really only one point in the process at which this ash is disposed of, and that’s when it goes to the landfill.

That… and as administrator Reilly notes in his ruling on the subject, ordinarily the only hazardous waste that these facilities dispose of is the ash.

Anthony M. Kennedy:

But hazardous waste generation is also a defined term, and it does not seem to me that your argument takes that into account, or that if it does, your position must be that one of these exempt facilities can be said to be disposing of wastes when other facilities would be generating it.

Lawrence Rosenthal:

Well, I–

Anthony M. Kennedy:

It seems to me that you’re saying that there’s an overlap between what the statute treats as two discrete categories.

Lawrence Rosenthal:

–Well, what we have here is a situation where the precise act by which the ash is generated, incineration, is already covered by the statute, because that act is treatment within the meaning of the statute, and Congress put treatment in, so it would have been surplusage to also put generation in.

Indeed, EPA’s own household waste exclusion didn’t use the term, generation.

Anthony M. Kennedy:

Well, if you had another facility that was not exempt, it would be proper for the Government to say that the creation of the ash was hazardous waste generation, would it not?

In other words, it’s only because of this particular construction that you give to the exemption that the term, hazardous waste generation, seems to become irrelevant.

I don’t quite understand how you can do that consistent with the statutory scheme.

Lawrence Rosenthal:

If the act of generating is already exempt under another term that Congress put into the statute, and in my view it is, it’s already exempt because it’s treatment.

Ruth Bader Ginsburg:

But the legislative report did include both words, did it not?

Lawrence Rosenthal:

It did.

I take it that the author of that report, out of an abundance of caution, because it was clear to the author of that report that everything was exempt, put the word in, but the drafter of the statute evidently worried that if surplusage was put into the statute, that might create some mischief, track the household waste exclusion, which itself did not use the term, generation.

And I think if you look at the statute’s underlying purpose, this becomes even clearer, because of course, Congress has told us what its purpose is.

It enacted a purpose provision in RCRA.

It had two relevant purposes… to encourage resource recovery, and reduce the Nation’s need for landfill space, and as Administrator Reilly recognized, those purposes would be dramatically undercut if the exemption didn’t extend to ash.

Indeed, on EDF’s view, this entire statute is meaningless, because EDF believes that only the incoming wastestream is exempted by the statute, but the incoming wastestream was already exempt prior to the enactment of this statute.

All the incoming household waste was exempt from household waste regulation under the EPA regulation, and nonhazardous commercial and industrial waste by definition was exempt, so on EPA’s view, this statute is a completely empty gesture.

I submit that that is not a sensible way to construe it.

Ruth Bader Ginsburg:

A couple of times, referring to the landfill, you said the fortuity that the city didn’t own the landfill, is that… is it common that the landfill is independently owned and operated?

Lawrence Rosenthal:

It is frequent.

I don’t know which pattern is more common, but it is certainly frequent that landfill space is owned by an independent contractor.

David H. Souter:

Mr. Rosenthal, even on the least generous view of EDA’s position, the statute is not completely useless, is it, because it does clarify the significance of receiving nonhazardous industrial waste?

Lawrence Rosenthal:

It does not clarify that at all if it only deals with the incoming wastestream, because that incoming wastestream was already exempt because it is by definition nonhazardous.

David H. Souter:

You mean, it was already exempt even if it included both household and industrial nonhazardous?

Lawrence Rosenthal:

If it included… if the incoming wastestream included only household waste and nonhazardous commercial and industrial waste, nothing in that incoming wastestream would be subject to hazardous waste regulation under RCRA, prior to 1984.

This leads me, if there are no further questions, to the EPA’s view, and on that I will defer myself to the United States.

William H. Rehnquist:

Very well, Mr. Rosenthal.

Mr. Minear, we’ll hear from you.

Jeffrey P. Minear:

Mr. Chief Justice and may it please the Court:

Chicago and EDF each argue that this case is controlled by the plain language of the statute, but they reach very different conclusions as to what that language means.

As their disagreement suggests, section 3001(i) does not squarely resolve the precise issue before the Court.

The statute says nothing specific about ash residues, and the statute is ambiguous on the more general question of whether it grants an exemption covering all of the facility’s operations, including ash disposal.

The practical results of this case closely parallel Chevron itself, where the issue was whether the Clean Air Act regulates stationery sources on a plant-wide or component-by-component basis, and as in Chevron, the Court should look for guidance from the administrative agency that is the expert in this field and that is charged with administering the statute.

The EPA’s views are highly relevant in this situation, because RCRA gives–

William H. Rehnquist:

Isn’t this situation a little bit different from Chevron?

Here what was issued was an interpretive bulletin, wasn’t it?

Jeffrey P. Minear:

–It is actually a memorandum issued from the director, the Administrator of EPA, to the regional administrators directing them how they should enforce the act.

In EPA parlance, that would be an interpretive rule.

Now, Chevron itself also involved an interpretive rule.

The only difference between the two situations was the Chevron case involved an interpretive rule that was subject to notice and comment.

However, it is our view that notice and comment does not have any bearing on the question of whether the interpretation is entitled to deference.

The question instead is whether this is an authoritative interpretation of the Agency, and that in fact it is.

It comes directly from the administrator himself.

Sandra Day O’Connor:

Mr. Minear, I’m troubled, still, by the fact that the statute that we are asked to interpret deals with what we do with a resource recovery facility and what conduct of that facility is exempt from subtitle C–

Jeffrey P. Minear:

Yes, Your Honor.

Sandra Day O’Connor:

–and the EPA memorandum seems to be addressed more to whether ash itself should be treated as a hazardous waste, which presumably would take it all the way down the line, and I’m having some difficulty with understanding how we interpret the statute as applied, ultimately, to the private landfill.

Jeffrey P. Minear:

One of the problems in this area obviously is that EPA’s household waste exclusion, which it passed as a legislative rule in 1980, exempts a wastestream from the time that the household waste is picked up at curbside until it finds its ultimate destination in an incinerator or a landfill.

Section 3001(i) is in fact a facility or process exemption instead, and EPA has attempted to reconcile these two by in fact saying that we look at the matter this way, and this is set forth in footnote 9 of our brief on page… footnote 6 at page 19.

The incinerator that receives the waste, it has the exemption up to the time it burns it, obviously.

The exemption is section 3001 exemption allows it to mix household waste with nonhazardous commercial waste.

The question then arises, what about the ash that results from this?

If the ash is nonhazardous, then there is no question there has been no generation of a hazardous waste, and it could be sent to the landfill.

On the other hand, if the ash does test positive, is hazardous, the question is, what do we do then, and that is the question that EPA has in fact answered through its interpretive memorandum.

It’s indicated that in that situation the household… the facility, the resource recovery facility, preserves the exemption.

Jeffrey P. Minear:

The exemption continues to apply to the wastestream and it can send it on to a landfill.

That’s–

Sandra Day O’Connor:

Well, what about when it’s in the landfill?

Maybe it covers the city… the resource recovery facility until it dumps it out on the ground, but then what?

Jeffrey P. Minear:

–Well, the statute itself is ambiguous on this, and that… for that reason, the EPA has made the interpretation that the exemption continues to apply, just as if household waste alone was incinerated.

Keep in mind–

Sandra Day O’Connor:

Do we have to decide that here?

I mean, I guess we don’t have the landfill before us.

We have the resource recovery facility.

How much do we have to decide here?

Jeffrey P. Minear:

–That’s right.

You don’t ultimately have to decide it, but I think it’s important to understand that issue in deciding what this regulation in fact does, what the household waste exclusion does, what the clarification itself does, and I think that’s a relevant consideration.

It’s obviously something that EPA has considered in reaching its formulation of the issue, and–

Ruth Bader Ginsburg:

Mr. Minear, isn’t it crucial to the city to know whether they have to pay $453 a ton to the landfill?

Jeffrey P. Minear:

–Yes, that’s right, and EPA, as I say, has now clarified that in the interpretive memorandum that Administrator Reilly issued.

They made clear that the exemption continues to apply to the ash.

Ruth Bader Ginsburg:

In answer to Justice O’Connor’s question, though, I take it that what you said is, well, to decide this case, you can leave it hanging whether that $453 price tag has to be picked up by the City of Chicago.

Jeffrey P. Minear:

Technically, this case is only against the resource recovery facility, and that is all I meant to imply by whether you could decide the issue, you needed to decide the issue in this case.

The question is whether the resource recovery facility can take advantage of that exemption, and it leaves open… this case does not necessarily involve the landfill itself.

Ruth Bader Ginsburg:

Mr. Minear–

–But the landfill has to be paid by somebody, and that somebody is the City of Chicago.

Jeffrey P. Minear:

That is correct.

John Paul Stevens:

May I ask, just… maybe it’s in the papers and I just forgot it.

How many of these facilities are there in the country now?

Jeffrey P. Minear:

There’s about 150 resource recovery facilities.

John Paul Stevens:

Has the EPA ever proceeded against any of them?

Jeffrey P. Minear:

No, it has not.

Antonin Scalia:

Mr. Minear, why was there no need for notice and comment for this interpretive regulation?

Jeffrey P. Minear:

I think it’s important to remember that this regulation is… or this statement by the Agency is a statement of nonregulation.

It’s stating that it will not regulate this particular waste disposal practice.

Jeffrey P. Minear:

A 1985 statement that was issued as part of the… another regulation that also did not have notice and comment indicated that the statute was silent on this issue and that further technical studies need to be done, but it would not be imposing any additional regulations, and in fact–

Antonin Scalia:

Is that the requirement for notice and comment?

Jeffrey P. Minear:

–No, it is not.

Notice and comment is required in those cases other than interpretive regulations, but in fact, in many cases of interpretive regulations the Agency utilizes notice and comment, because it’s very helpful in the process.

Antonin Scalia:

All of them that are interpretive regulations the Agency was just doing voluntarily.

Jeffrey P. Minear:

In many cases, it is.

It is useful for the Agency to have notice and comment to get a full panoply of views so it can reach a reasoned determination on a particular matter.

David H. Souter:

Mr. Minear, with respect to the question whether the ash stream itself is exempt for as far as it may go, would you explain to me by reference to the text of the statute what is ambiguous about it?

The parties disagree, but that doesn’t necessarily make an ambiguity, and what in the text is ambiguous about the question whether the ash stream is or is not forever exempt?

Jeffrey P. Minear:

I think there’s even disagreement about the ambiguity, but let me point to two sources of ambiguity.

One is the grammatical ambiguity, the opening phrase here,

“resource recovery facility recovering energy from– “

William H. Rehnquist:

You’re reading from the beginning of 3001(i)?

Jeffrey P. Minear:

–That is correct.

It is unclear whether recovering energy is a true participle or fused participle, using Henry Fowler’s Modern English Usage, and that does lead to some ambiguity.

Does this say, a resource recovery facility that recovers energy, or is it really focusing on the gerund, recovering energy itself?

David H. Souter:

Well, but that ambiguity goes to the question of what resource recovery facility is covered.

How does that ambiguity affect the question whether the ash stream which is generated by whatever recovery facility generates it is forever exempt?

Jeffrey P. Minear:

Because if Congress is only concerned with the recovering energy from the mass burning of waste, it presumably is only concerned with the incineration process and not other parts of the facilities operations.

David H. Souter:

No, but let’s… I’m worried… I’m concerned about not the problem of where the exemption stops and starts within the facility, if you will, I’m concerned with whether there is an exemption that survives the point at which the ash leaves the facility and goes to a landfill, and as to that, which raises the question whether the ash is exempt or the facility is exempt, as to that, where is the ambiguity?

Jeffrey P. Minear:

On that point, the statute in fact is silent.

In this situation, it’s important to mention the context–

David H. Souter:

Well, it’s silent, isn’t it, in the sense that it doesn’t talk about ash, it just talks about recovery facilities?

Jeffrey P. Minear:

–That’s right, but it’s meant to clarify EPA’s regulation, the household waste exclusion, which did indicate that treated waste… in other words, ash… would continue to be exempt, so in fact–

David H. Souter:

Well, it’s a very strange clarification.

If the EPA reg was clear and explicit and the statute is silent, it seems to me rather odd to accept the claim of the statute that it’s clarifying as distinct from changing.

Jeffrey P. Minear:

–This might help to clarify the issue.

If household waste alone was burned in the resource recovery facility, the ash from that product under the 1980 regulation would in fact be exempt, and this just simply goes on to the question of whether the combined waste then would be exempt as well.

William H. Rehnquist:

Thank you, Mr. Minear.

Mr. Lazarus, we’ll hear from you.

Richard J. Lazarus:

Mr. Chief Justice, and may it please the Court:

The city and the United States this morning are making different, yet equally implausible, claims.

The city claims that section 3001(i)’s plain meaning exempts from subchapter C hazardous waste regulation facilities that that provision never mentions, and generator requirements that that provision never mentions.

Now, the United States agrees with us that the plain meaning provision doesn’t support the city’s construction, but then reaches the same result through its own, equally flawed analysis.

Both the city and the United States, however, are wrong for precisely the same reason, and that reason is section 3001(i)’s plain meaning.

Section 3001(i) means just what it says, no more and no less. It exempts certain activities of a particular kind of resource recovery facility from subchapter C.

It does not purport to exempt any activities of any other kind of facility, nor does it purport to exempt the resource recovery facility from the distinct generator requirements of subchapter C.

Let’s look at section 3001(i), the language of it, and consider precisely what the city is arguing.

Right now, in Joliet, Illinois, there is a private landfill disposal operator that is disposing of 180,000 tons of hazardous ash in a landfill that Congress deemed not to have the safeguards necessary for the disposal of hazardous waste. Now, the city claims that that private landfill operator is exempt from subchapter C.

Where in the language of section 3001(i) do they find that intent?

Is that landfill operator ever mentioned in section 3001(i)?

No.

William H. Rehnquist:

Well, Mr. Lazarus, did you bring this lawsuit… did your organization?

Richard J. Lazarus:

Yes, it did.

William H. Rehnquist:

Well, if you were concerned about the private landfill operator, why didn’t you join the private landfill operator?

Richard J. Lazarus:

Because it was essential in this case, Your Honor, to prove that there was a violation by the resource recovery facility itself.

RCRA is a complicated statute, but the pieces of it are very clearly defined by Congress in the statutory definition, and they fit together, ultimately, we think to present a clear picture, and let me explain, Your Honor.

It’s quite clear in section 3001(i) that Congress did not create what is deemed a wastestream exemption.

They did not exempt any facilities other than the resource recovery facility itself.

There’s no way you can read that statute to create a subchapter C regulation for any other facility.

Because Congress is not creating a wastestream exemption, Congress also clearly omitted from section 3001(i) any exemption from the distinct generator requirements under section 3002, which are distinct from the treatment storage and disposal requirements which they are exempt from under 3004.

Anthony M. Kennedy:

Well, does the Government, or the petitioner speak correctly, then, when it says that you would not challenge the legitimacy of the storage of the ash on the resource recovery facility’s site?

Richard J. Lazarus:

No, they do not.

The Court does not have to reach that issue here.

Anthony M. Kennedy:

Well, what is your position?

Richard J. Lazarus:

On that issue, our position is that section 3001(i) was regulating one kind of activity from the resource recovery facility, and that is the recovery process itself.

Let me give you an example.

Anthony M. Kennedy:

So that if the ash were stored on site, that would be a violation of the act–

Richard J. Lazarus:

Right–

Anthony M. Kennedy:

–or would be outside the exemption.

Richard J. Lazarus:

–and that would be distinct from our generator argument and our downstream argument, but let me explain why.

If the city, for instance, as suggested by Mr. Rosenthal, put a disposal facility on site, they couldn’t claim that exemption, because section 3001(i) only exempts a resource recovery facility.

It doesn’t purport to exempt any other activity that they might attempt to engage in there.

Anthony M. Kennedy:

So at what point does the facility lose its exemption with respect to the treatment of the waste?

Richard J. Lazarus:

It loses its exemption at the moment the incineration resource recovery process is over.

The statute… what it’s doing, it means that although the city is clearly treating the hazardous waste, and would otherwise be subject to 3004 of RCRA, it doesn’t have to seek a section 3004 permit, because it is deemed not to be a RCRA permitted facility under subchapter C.

Anthony M. Kennedy:

So the phrase, disposing of, applies simply to the waste that it receives and not to the ash that it generates.

Richard J. Lazarus:

That’s right.

What the statute deems is that a particular activity will not be considered to be management of a hazardous waste.

William H. Rehnquist:

But what good does that do the city, if it’s as narrow as you say?

They’re obviously not going to store the stuff right in the RCRA itself.

They’re going to have to dispose of it somewhere.

Richard J. Lazarus:

Chief Justice Rehnquist, it does the city an incredible amount of good.

They don’t have to try to obtain a permit under section 3004 of RCRA, which includes RCRA’s most rigorous performance requirements for the treatment, corrective action, financial assurance requirements… two-thirds of the incinerated… two-thirds, excuse me, of the facilities that are subject to section 3004 after Congress passed it in 1984 closed rather than try to get those permits.

One-half of them were denied the permits when they tried.

The city doesn’t have to achieve that.

Every–

Antonin Scalia:

But household waste was already excluded–

Richard J. Lazarus:

–Well, Your Honor–

Antonin Scalia:

–before this amendment.

Richard J. Lazarus:

–Yes.

Your Honor, but before the 1984 amendment there was absolutely no codification ever in the statute to that effect, and the cities were making investments.

In addition, there was no allowance for them to mix it with other kinds of waste, and no allowance for their inadvertent receipt of hazardous waste.

Ruth Bader Ginsburg:

Mr. Lazarus, the difference between that $42 a ton price tag and $453 is enormous.

Are you taking the position that these would be economically feasible operations if the disposal had to be in accordance with subchapter C?

Richard J. Lazarus:

Yes, absolutely, Your Honor.

There’s no doubt in our mind, and in several States they manage their ash under subchapter C in their States rather than–

Ruth Bader Ginsburg:

Because of State regulation?

Richard J. Lazarus:

–Yes.

They choose to do it under subchapter C rather than D, and actually that’s in the record in this case.

Richard J. Lazarus:

District court docket number 73, an affidavit submitted to that effect.

But let me explain why it will still be economical.

There are significant volume reduction benefits and energy benefits, but most importantly, if this fiction is eliminated, the city will quite quickly have an incentive to take the rational steps, and the most simple steps they can take is that the ash, which is hazardous, the ash which tends to flunk EPA’s toxicity characteristic analysis, is the fly ash.

That’s where the heavy metals go.

That’s 10 percent by weight of the ash which is produced.

The bottom ash… the bottom ash does not tend to be hazardous.

Currently, because the city lacks any economic incentive, they mix the two, producing 100 units of ash that flunks the EPA toxicity characteristic analysis instead of 10 units of that ash.

They could quickly reduce their cost by tenfold just by not affirmatively mixing the two, and that–

William H. Rehnquist:

Do they reach the RCRA segregated?

Richard J. Lazarus:

–Excuse me?

William H. Rehnquist:

Does the kind of ash that proves to be hazardous, does the metal that makes up that come separately to the RCRA from the household ash?

Richard J. Lazarus:

It comes from the household ash and it also can come from the nonhazardous industrial and commercial waste, and that’s because although the industrial and commercial waste may be nonhazardous, they may contain hazardous constituents, and those hazardous constituents, because of the incineration process, do two things:

1) they become concentrated in the ash, and 2) they now become on… become placed on a material… that is, ash… with a very significant surface, percentage of surface on it and the surface matter of ash, and the concentration which together caused the ash to flunk EPA’s toxicity characteristic analysis, which looks to whether a substance is likely to leach in a landfill, and it’s because it’s ash, because it’s concentrated.

So the hazardous waste here could well come not just from the household waste, the hazardous ash could well come from the commercial industrial waste which has hazardous constituents.

John Paul Stevens:

May I ask, just… the chemistry and the amounts involved are hard for me to follow, but I assume there is some hazardous waste in the incoming stream of waste that is exempt, and you agree that that’s exempt.

Richard J. Lazarus:

That’s right.

We don’t contest that here, that’s right.

John Paul Stevens:

If we assume that the process of incineration produces a new ash that contains no larger percentage of hazardous materials than the incoming stream, would they then be subject to subchapter C?

Richard J. Lazarus:

Yes, they would, because they would have generated a hazardous waste.

John Paul Stevens:

Even if they have not enhanced the hazardous percentage of the total amount of garbage processed?

Richard J. Lazarus:

Yes, because… they have, obviously, in this case, Your Honor.

John Paul Stevens:

Isn’t it inevitable, then, that no matter what they do, that because they start with some hazardous waste, they’re going to end up with some hazardous waste?

Richard J. Lazarus:

But they’re going to end up with much, much less, Your Honor, in terms of the volume of it.

There’s things that they could do, Your Honor, to try to avoid that.

John Paul Stevens:

I understand they could do something better, but–

Richard J. Lazarus:

Well, they could try source separation in the first instance.

They could try to avoid putting the kinds of–

John Paul Stevens:

–No, but just, even doing what they do, which is not the best, as I understand it, do they increase the ratio of hazardous to nonhazardous waste in the stream of garbage that they process?

Richard J. Lazarus:

–Oh, yes, they do, Your Honor.

If you look at–

John Paul Stevens:

But you say that’s not legally required, but you say they just–

Richard J. Lazarus:

–They certainly do, and let me explain.

There are 180 million tons of municipal solid waste produced each year.

Less than 1 percent of that would qualify as hazardous waste.

If you look to the ash that’s produced, because of the concentration, because of the ash material, as in this case, 32 out of 35 samples flunk EPA’s toxicity characteristic analysis.

This is a fundamental chemical transformation, and that is the concentration and the material, and that’s why it flunks EPA’s toxicity characteristic analysis.

It’s one thing for Congress, Your Honor… it’s one thing for Congress to have exempted a waste where, out of 180 million tons, less than 1 percent is hazardous, and not to require the municipality to sort through that.

It’s a very different policy view, and it’s an essential distinction, we believe, not to exempt a substance, when once you have isolated the part which is hazardous, which is on an ash material, which has the toxicity characteristic analysis, not to exempt that.

When Congress wanted, Your Honor… when Congress wanted to create a wastestream exemption in RCRA, Congress did it explicitly, and they did it with procedural safeguards.

Ruth Bader Ginsburg:

–Mr. Lazarus, you’re not questioning that EPA originally in 1980 had a wastestream exemption?

Richard J. Lazarus:

No, we’re not questioning that.

It wasn’t a wastestream exemption, though, that actually would have applied to this case, because as EPA recognized in 1985, in their preamble statement, right after RCRA’s enactment, that hazardous waste… excuse me, that exclusion only applied to the incineration of household waste.

It didn’t apply to the incineration of household waste mixed with other kinds of waste, and that’s why EPA said in 1985 that under EPA’s then-existing regulations this ash would not be exempt, but wholly apart from that, wholly apart from the gratuity in this case, that we don’t have a mixture, we think that Congress addressed the issue for the first time in 1984 in 3001(i).

Ruth Bader Ginsburg:

And silently changed what had been a wastestream exemption into a facility exemption.

Richard J. Lazarus:

Well, not silently, Your Honor.

I think as Mr. Rosenthal said, this is not a question of congressional silence, this is a question of the plain meaning of the words of the statute, and the plain meanings of the words of the statute creates one kind of exemption, and that’s a facility exemption.

And if you look at the question presented in this case, presented by both the United States and by the City of Chicago, the question presented is whether section 3001(i) of RCRA exempts the act.

It’s a wastestream exemption premised on one provision.

They aren’t arguing for facility exemption, they’re arguing for a wastestream exemption.

William H. Rehnquist:

How about the city’s argument that when Congress legislates it’s presumed to have ratified a prior administrative construction?

Richard J. Lazarus:

Your Honor, in this case, first of all that doesn’t apply, because section 3001(i)… excuse me, the prior administrative construction wouldn’t have covered this situation, and that is a situation of the mixture, and whatever presumption might exist, Your Honor, that presumption is clearly overcome by the plain meaning of the statute, which did not adopt the word and the language of that prior regulation.

That prior regulation was written as a wastestream exemption.

Section 3001(i) is written as a facility exemption.

William H. Rehnquist:

What do you mean by the term, mixture?

Richard J. Lazarus:

Before 1984, a resource recovery facility which mixed household waste with nonhousehold waste, waste from commercial industrial sources, had no benefit from the household waste exclusion.

One of the things section 3001(i) did was allowed them to mix the two, and allowed for the inadvertent receipt of hazardous waste by allowing for certain kinds of procedural safeguards, and gave basically some kind of protection for municipalities so that they could avoid regulation under section 3004, which was the RCRA permit requirements.

Sandra Day O’Connor:

Now, you say the cost estimates if we agree with petitioner are incorrect?

Richard J. Lazarus:

Yes.

Yes, Your Honor.

The cost estimates are in–

Sandra Day O’Connor:

What do we have in the record to clarify that for us?

Richard J. Lazarus:

–Well, Your Honor, in the record, there’s really nothing in the record to support their claims or our claims.

We’re both dealing with extra-record material.

We think that the support that we have given in this case in which we’ve tried to rely in our brief on EPA reports and legislative reports bear out our position.

One reason we don’t have an administrative record, Your Honor, is also one reason why we don’t think EPA’s view should be entitled to any deference.

There’s no administrative record in this case, there’s no record evidence, because EPA has never promulgated a legislative rule on this issue.

The record would no doubt be much better if there had been a legislative rule.

Sandra Day O’Connor:

Well, does EPA need to promulgate a rule if it decides not to regulate something?

Richard J. Lazarus:

In a case like this, Your Honor, where EPA had said in a prior interpretive rule in 1985 that its existing legislative rule made this ash subject to subchapter C regulation, if the EPA is going to change its interpretation of an existing legislative rule, it should do it by a legislative rule, it shouldn’t do it by an interpretive rule, and this memorandum in this case is at best an interpretive rule, because even interpretive rules are supposed to be published in the Federal Register under the Administrative Procedure Act, and this rule was not.

Let me turn the Court’s attention, though, just for a moment to section 3001(b)(2) and (b)(3), because I think those provisions truly became highlighted in petitioner’s reply brief, show that Congress knew how to create a wastestream exemption when it wanted to.

In section 3001(b)(2) and (b)(3)–

William H. Rehnquist:

Where do we find these?

Richard J. Lazarus:

–Actually, they’re cited in their reply brief.

William H. Rehnquist:

The yellow brief?

Richard J. Lazarus:

Yes.

They’re cited in the reply brief… let me see if I can–

William H. Rehnquist:

They’re just cited?

Richard J. Lazarus:

–Yes.

They actually do not give the text of–

William H. Rehnquist:

And you don’t give the text in your brief?

Richard J. Lazarus:

–No, we did not, Your Honor.

It wasn’t actually until I saw their citation of them I decided to see what support they gave for the city’s petition… city’s position, and I realized that actually those provisions supported our position and not the city’s, and so at that… up to that point we had never cited those provisions, because we thought they were so obviously distinct, when the city relied upon them, it occurred to me that actually that distinction helped our case more than I had taken advantage of in our opening brief.

In those provisions, in section 300(b)(2) and (b)(3), Congress created explicit wastestream exemptions, and that is, for waste associated with the exploration, production, and development of oil and natural gas, and waste from the combustion of coal, in those provisions, Congress, with respect to coal combustion, specifically refers in the statute to fly ash and bottom ash, but at the same time that Congress authorized in those provisions EPA to create a wastestream exemption, Congress imposed significant procedural safeguards because of the environmental risk associated with a wastestream exemption as opposed to a facility exemption.

In particular, Congress required EPA to study the effects of a wastestream exemption applied to those wastes.

Congress required EPA to hold a public hearing on that issue.

Congress required EPA to receive public comment on that issue.

Congress required EPA, if it decided to exempt those wastes as a wastestream from subchapter C, to make a formal determination to that effect, and to report that determination to Congress.

Now, what the city is seeking in this case is a wastestream exemption far broader than that created by Congress when it specifically addressed the issue, and without any of the procedural safeguards that Congress deemed necessary prior to the creation of a wastestream exemption.

We simply don’t believe, Your Honor, that the statutory language comes anywhere close to supporting the city’s contention.

You have to put the pieces of the RCRA puzzle together.

Richard J. Lazarus:

You have to look at the clear definitions of the terms, generation, management, disposal, and section 1004.

There is only one facility… there is only one facility that is disposing of hazardous waste in this case, and that facility is the private landfill operator in Joliet, Illinois.

We are not claiming that the city is disposing of hazardous waste, because if you’re disposing of hazardous waste, you have to be discharge, depositing, injection, dumping, spilling it or leaking it or placing it on the land or water, and there’s only one facility which is doing that, and that facility does not enjoy the benefit of subchapter C, and the city is violating the distinct generator requirements under section 3002.

Because one of those requirements, in addition to the testing requirements, the determination of whether it’s a hazardous waste, the labeling requirement, and the manifest trapping system requirement, which is so essential at the gatekeeper to let the downstream facilities comply with subchapter C, is that the city… also, as a generator, one of the requirements under section 3002 is that the generator assure that the waste is ultimately disposed not by them but by somebody else at a RCRA-permitted facility under section 3004, and that is the distinct generator requirement.

The pieces fit very nicely together.

The statute is very clear.

This is not a statute where we have to guess at the meaning of the terms.

There are 40 terms defined in section 1004 of RCRA, very clearly, very carefully defined.

Anthony M. Kennedy:

Suppose the city segregated the waste as you suggest so that it initially put the stuff in piles where the more hazardous stuff was in one pile, and left it there, and then it started to seep out into the land, would that be a violation of the act?

Richard J. Lazarus:

Well, Your Honor, actually, under our reading of the statute, actually under the way the resource recovery facility works, it’s actually not… you don’t have to segregate it.

It’s already separate.

The fly ash and the bottom ash are actually–

Anthony M. Kennedy:

No, no… no, I have a different hypothetical.

Suppose that they take the refuse as it comes to them and separates it into two piles, one pile has a lot of the hazardous stuff in it, and it just lets that pile sit for 6, 8 months.

Is that a violation of the act, or are they within the exemption?

Richard J. Lazarus:

–Since we believe that the exemption does apply to the waste that they receive in the first place–

Anthony M. Kennedy:

What is it about the statute that triggers the loss of the exemption when the ash is created?

What are the words that you want me to look to?

Richard J. Lazarus:

–Because under the words of the statute, the only activities that are referred to in section 3001(i) are the receiving and burning of the waste and the recovering of energy from the mass burning.

Anthony M. Kennedy:

No.

It talks about treating, storing, disposing–

Richard J. Lazarus:

Right, but the only thing that it says does not amount to treating, storing, or disposing, or otherwise managing, is the resource recovery facility recovering energy from the mass burning.

That’s the only activity which is said to be deemed not to be management, and that’s why that facility does not have to obtain a section 3004–

Anthony M. Kennedy:

–Tell me where I’m supposed to–

–Is the subject of the activity–

–where it says, receives and burns?

Richard J. Lazarus:

–Under section… subsection 1(A), such facility receives and burns only, and describes there.

Now, Your Honor–

Anthony M. Kennedy:

Is the subject of the–

–No, but that describes the facility, not the act.

Anthony M. Kennedy:

The acts are, treating, storing, disposing, otherwise managing.

Richard J. Lazarus:

–Yes, but that is saying that certain acts shall not be considered to be treating, storing, disposing, and we think the act which is not considered to be treating, storing, is the recovering energy from the mass burning.

John Paul Stevens:

Yes, but those terms just modify the word, recovery facility.

Richard J. Lazarus:

Well, we think–

John Paul Stevens:

They’re modifiers describing what kind of recovery facility shall not be deemed–

Richard J. Lazarus:

–That’s right, and it’s that activity which shall not be deemed to be managing.

Now, of course, Your Honor, the Court does not have to reach that distinct issue to rule in our favor, because what we’re claiming here is not that they’re treating, storing, disposing, or otherwise managing.

We’re claiming that they’re violating the generator requirements.

Antonin Scalia:

–You assume that the subject of the sentence is a resource recovery facility recovering energy, and maybe the subject is a resource recovery facility.

Richard J. Lazarus:

Well, Your Honor, it seems quite clear to us that if the city changed the nature of their facility and said, well, this isn’t just going to be a resource recovery facility, this is now going to be a landfill disposal facility, that they wouldn’t be entitled to the benefit of section 3001(i), that Congress was not, in intending to promote resource recovery facilities by exempting from 3004, allowing the city to put a different kind of facility there, such as a disposal facility.

Antonin Scalia:

No, it has to be recovering energy from mass burning, but it may be doing other things as well.

Richard J. Lazarus:

No, Your Honor, we think that the only thing that 3001(i) addressed was an exemption–

Antonin Scalia:

Well, you think that, but I’m not sure that the language is clear on that point.

Richard J. Lazarus:

–Well, I think… Your Honor, I think the language was quite clear, and in all events the language was quite clear that in no event are they entitled to any exemption from the generator requirements, and in no event is any other kind of facility entitled–

Antonin Scalia:

Well then, storing the household waste prior to its combustion isn’t covered, because that is not a resource recovery facility recovering energy.

It’s not doing anything.

It’s just sitting there.

Richard J. Lazarus:

–Your Honor, I… in terms of receiving it, we believe that there is enough language in the statute to support the notion that if they’re doing that because–

Antonin Scalia:

Not if we agree with the argument you’ve just made.

Richard J. Lazarus:

–Well, we think that… I pointed out a moment ago that we have an elaboration upon the receiving… Your Honor, if this Court were to rule that they weren’t entitled to the exemption, either, which is an issue not presented in this case, I would probably have to talk to my client, and maybe they might agree with that reading.

That is not, however, the position that is raised in this case, and is not the contention that we’re addressing.

Antonin Scalia:

You don’t want us to go so far as to agree with the logic of what you’ve said, right?

[Laughter]

Richard J. Lazarus:

I would not object to this Court giving section 3001(i) a narrow reading.

The fact is, there is a settled canon of statutory construction in this Court which we think is applicable here, and that is when we’re talking about a remedial statute, that exemptions of the remedial statute should be narrowly and not broadly construed.

William H. Rehnquist:

And how do we tell a remedial statute from a nonremedial statute?

Richard J. Lazarus:

Well, I think in this case, when you have a statute designed to protect human health and the natural environment, that is the paradigmatic case of remedial statute.

I see my time is up.

Thank you very much.

William H. Rehnquist:

Thank you, Mr. Lazarus.

William H. Rehnquist:

Mr. Rosenthal, you have 2 minutes remaining.

Lawrence Rosenthal:

I’d like to first turn to the question whether what we have here is a wastestream exemption, because no one should mistake the boldness of what EDF is asking this Court to hold.

EDF is asking this Court to hold that Congress was misrepresenting when it crafted this statute, that Congress in fact wasn’t clarifying anything, that that is a misrepresentation, that Congress intended to dramatically narrow the scope of the exemption that these facilities receive if they mix in, to use Mr. Lazarus’ words, any nonhazardous commercial and industrial waste.

The interesting thing about the record in this case is it shows that 99 percent of what this facility receives is household waste.

On EDF’s view, because the city mixes in 1 percent, or less than 1 percent, nonhazardous commercial and industrial waste, Congress would have intended a dramatically different result, would have intended to end the wastestream exemption.

It is, as one of Justice Ginsburg’s questions noted, it is the resource recovery facility itself that must find a way to dispose of the ash.

When that ash is on-site, it is the resource recovery facility’s problem.

How are you going to dispose of it?

Are you going to have to dispose of it as hazardous waste, and pay $453 a ton, according to EPA’s estimates, or can you dispose of it at a more feasible cost of $42 a ton as nonhazardous waste?

For all these reasons, I ask the judgment be reversed.

Thank you.

William H. Rehnquist:

Thank you, Mr. Rosenthal.

The case is submitted.