ELR Citation: ELR 20690
No(s). 91-1328 (7th Cir. Jan 29, 1993)

On remand from the U.S. Supreme Court, the court holds that a U.S. Environmental Protection Agency (EPA or the Agency) memorandum presenting a new interpretation of the Resource Conservation and Recovery Act (RCRA) §3001(i) exemption for municipal waste combustion ash from RCRA Subtitle C hazardous waste regulations does not affect the court's prior judgment, 22 ELR 20125 that ash generated in the combustion of municipal waste is subject to regulation under RCRA Subtitle C. The Supreme Court vacated the court's prior decision and remanded the case for reconsideration in light of a memorandum issued by the EPA, entitled Exemption for Municipal Waste Combustion Ash From Hazardous Waste Regulation Under RCRA Section 3001(i). The EPA memorandum represented a change in the Agency's prior official position, that ash generated by the combustion of municipal waste is not included in the §3001(i) exemption. The court holds that neither the Agency's change in position nor the argument that §3001(i) is ambiguous persuade it that its own analysis of RCRA was erroneous. The court observes that EPA has changed its view so often that it is no longer entitled to the deference normally accorded an agency's interpretation of the statute it administers. Moreover, the language of §3001(i) is clear.

A dissenting opinion would defer to the reasonable interpretation of EPA, because it was responsible agency action to reassess an ambiguous issue and it deserves deferential review.

[The district court's decision is published at 20 ELR 20375, and the appellate court's prior decision is published at 22 ELR 20125.]

Counsel for Plaintiffs-Appellants
Edward Wilhoite
Lerner & Wilhoite
1007 W. Webster Ave., Chicago IL 60614
(312) 372-2511

Counsel for Defendants-Appellees
Mardell Nereim, Corporation Counsel
U.S. CtHse., 219 S. Dearborn St., Chicago IL 60604
(312) 744-6975

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