Environmental Defense Fund, Inc. v. City of Chicago, 90-3060

• Decision Date: 19 November 1991
• Docket Number: No. 90-3060,90-3060
• Citation: 948 F.2d 345
• Parties: , 60 USLW 2363, 22 Envtl. L. Rep. 20,125 ENVIRONMENTAL DEFENSE FUND, INC., et al., Plaintiffs-Appellants, v. The CITY OF CHICAGO, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 345

948 F.2d 345

33 ERC 2041, 60 USLW 2363, 22 Envtl.

L. Rep. 20,125

ENVIRONMENTAL DEFENSE FUND, INC., et al., Plaintiffs-Appellants, v. The CITY OF CHICAGO, et al., Defendants-Appellees.

No. 90-3060.

United States Court of Appeals Seventh Circuit.

Argued May 10, 1991.

Decided Nov. 19, 1991.

Leslie A. Jones, Northwestern University Legal Clinic, R. Edward Wilhoite, Jr. (argued), Despres, Schwartz & Geoghegan, Chicago, Ill., Karen Florini, Washington, D.C., for plaintiffs-appellants.

Nancy Marren, Henry L. Henderson, Mardell Nereim (argued), Lawrence Rosenthal, Deputy County Counsel, Kelly R. Welsh, Asst. County Counsel, Office of the Corp. Counsel, Chicago, Ill., for defendants-appellees.

Before BAUER, Chief Judge, POSNER, and RIPPLE, Circuit Judges. ^*

BAUER, Chief Judge.

In this case, we are asked to determine whether the ash generated by a municipal solid waste incinerator is "hazardous waste" that must be disposed of in accordance with the provisions of Subtitle C of the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901-6992k ("RCRA"). The incinerator in question--the Northwest Waste-to-Energy Facility--has been owned and operated by the City of Chicago ("the City") since 1971. Faced with rapidly diminishing space for landfill, the City has turned to innovative methods to dispose of the approximately 2.5 million tons of solid waste generated each year. The Northwest Facility was one of the first modern waste-to-energy resource recovery facilities in the United States and the only one in the State of Illinois. Each day, it receives for processing 200 to 250 truckloads of refuse, the bulk coming from residential units. The plant incinerates 350,000 tons of waste annually. The steam generated from the combustion of waste is used to run the facility.

The plaintiffs, the Environmental Defense Fund, Inc., and Citizens for a Better Environment (collectively, "EDF"), filed a complaint against the City and its mayor alleging that the City violated provisions of RCRA and its regulations governing the handling of hazardous waste. EDF maintains that the City is violating RCRA by unlawfully storing, transporting, disposing of, and otherwise handling the by-product of the incineration at the Northwest Facility, the 110,000 to 140,000 tons of ash produced every year. According to the EDF, the toxicity level of the ash is high enough to qualify it as a hazardous waste subject to special treatment under Subtitle C of RCRA. Between 1981 and 1987, thirty-five samples of ash from the Northwest Facility were tested. Out of these, thirty-two exhibited enough lead, cadmium, or both, to meet the standard for Extraction Procedure toxicity, which forms a part of Subtitle C.

Subtitle C establishes a regulatory scheme governing the treatment, storage, and disposal of hazardous wastes. (Non-hazardous waste is governed by Subtitle D of RCRA.) Generators of hazardous waste must apply for and receive a United States EPA identification number before engaging in the treatment, storage, disposal, transportation, or offering for transportation of hazardous waste. See 40 C.F.R. § 262.12. Before shipping, hazardous waste must be packaged, labelled, and marked according to specific regulations. See 40 C.F.R. § 262.30-33. Hazardous waste must be accumulated in approved containers and only for specified periods of time. 40 C.F.R. § 262.34. Generators of hazardous waste also must maintain certain records, and file biennial reports with the EPA Regional Administrator. See 40 C.F.R. § 261.40-.43. The ash produced by the Northwest Facility is not dealt with pursuant to this "cradle to grave" regulatory scheme. Instead, it is shipped off to Michigan for burial in a landfill site that is not licensed to accept hazardous wastes.

In the district court, the parties filed cross motions for summary judgment. The City argued that the ash produced at the Northwest Facility is exempt from regulation under section 3001(i) of RCRA, 42 U.S.C. § 6921(i), which provides that a resource recovery facility will not be deemed to be "treating, storing, disposing of, or otherwise managing" hazardous wastes for the purposes of regulation if the facility meets certain requirements. In addition to filing its own motion for summary judgment, EDF also opposed the City's motion on the ground that the City had not demonstrated that the Northwest Facility met the requirements of section 3001(i).

On November 29, 1989, the district court issued a memorandum and order, holding that section 3001(i) exempted the ash produced at resource recovery facilities from regulation as a hazardous waste. See Environmental Defense Fund v. City of Chicago, 727 F.Supp. 419, 424 (N.D.Ill.1989). The district court, however, denied both motions for summary judgment, allowing EDF additional discovery to determine whether the Chicago facility met the requirements of section 3001(i). In July 1990, EDF stipulated that it would not contest the adequacy of the Northwest Facility's procedures for excluding hazardous wastes and that it would not oppose a renewed motion for summary judgment by the City. On August 20, 1990, the district court granted the City's renewed motion for summary judgment. This appeal followed.

This case turns on the construction of section 3001(i). To make sense of this statute, we must sort through conflicting, often confusing, pronouncements from Congress and the EPA. Indeed, the EPA's various interpretations of the statute have muddied the waters to such an extent that courts have failed to give it the deference normally accorded to an agency's construction of a statute it administers. See, e.g., Environmental Defense Fund v. City of Chicago, 727 F.Supp. at 424; Environmental Defense Fund v. Wheelabrator Technologies, 725 F.Supp. 758, 766 (S.D.N.Y.1989), aff'd, 931 F.2d 211 (2nd Cir.1991). The Second Circuit, the only appeals court to interpret section 3001(i) thus far, concluded that the statute exempts the ash remaining after the incineration of municipal solid waste at a resource recovery facility from regulation as a hazardous waste. Wheelabrator, 931 F.2d at 213.

As a threshold issue, we must consider whether, as the City suggests, this case has been rendered moot by passage of the 1990 amendments to the Clean Air Act. Section 306 of the amendments provides in part that "[f]or a period of 2 years after the date of enactment ... ash from solid waste incineration units burning municipal waste shall not be regulated by the Administrator of the Environmental Protection Agency pursuant to Section 3001 of the Solid Waste Disposal Act." Pub.L. No. 101-549, 104 Stat. 2399 (1990). When Congress enacted this provision, it was well aware that this matter was pending on appeal. The accompanying committee report explains, "[t]he conferees do not intend to prejudice or affect in any manner ongoing litigation, including Environmental Defense Fund v. Wheelabrator, Inc., 725 F.Supp. 758 (2d Cir.) [sic] and Environmental Defense Fund v. City of Chicago, Appeal No. 90-3060 (7th Cir.) [sic], or any State activity regarding ash." H.Rep. No. 952, 101st Cong., 2d Sess. 335, 342, reprinted in 1990 U.S.Code Cong.Admin.News 3385, 3867, 3874.

What all this means is that the amendments to the Clean Air Act do not render this matter moot, but rather maintain the status quo until the time Congress reauthorizes RCRA. After that period expires, Congress may determine whether it wishes to revise the statute with regard to the ash question. Although we cannot say for certain, it well may have been that Congress wanted to see what the courts had to say on the issue before undertaking any retooling of the current regulatory scheme. Until then, the EPA is precluded from promulgating regulations on ash pursuant to section 3001(i). Nothing in the amendments, however, suggests that the EPA may not enforce the scheme now in place. What that covers, exactly, is for us to determine.

Having concluded that the matter properly is before us, we turn our attention to the district court's decision. As with all summary judgment determinations, we review the matter de novo to decide whether the record as a whole establishes that the defendant was entitled to judgment as a matter of law. See, e.g., Santella v. City of Chicago, 936 F.2d 328, 331 (7th Cir.1991); Dieckhoff v. Severson, 915 F.2d 1145, 1148 (7th Cir.1990). Before we can proceed, we must trace our way through a somewhat complicated statutory and regulatory scheme.

In 1980, EPA issued the "household waste exclusion," a regulation that explicitly exempted household waste from the statutory definition of "hazardous waste." See 45 Fed.Reg. 33,120 (codified as amended at 40 C.F.R. § 261.4(b)(1) (1987)). The exclusion had the effect of releasing households and municipalities from the burden of complying with the cumbersome requirements of Subtitle C. In the preamble to the regulation, the EPA stated that, "[s]ince household waste is excluded in all phases of its management, residues remaining after treatment (e.g., incineration, thermal treatment) are not subject to regulation as hazardous waste." Id.

Congress never ratified this statement in the form of legislation. Instead, it enacted section 3001(i) in 1984 as part of the Hazardous and Solid Waste Amendments to RCRA to "clarify" the EPA's household waste exclusion. (Actually, Congress was interested in excluding from the extremely complex regulations that apply to facilities that specifically target hazardous waste municipal incinerators that inadvertently process hazardous materials that slip in with all the other junk.) Section 3001(i) provided the following:

A resource recovery facility recovering energy from the mass burning of municipal solid waste shall not be deemed to be treating, storing, disposing of, or otherwise managing hazardous wastes for the purposes of regulation under this subsection if--

(1) such facility--

(A) receives and burns only--

(i) household waste...