Environmental Defense Fund, Inc. And Citizens for a Better Environment v. City of Chicago and Mayor Richard M. Daley , 985 F.2d 303 ( 1993 )

BAUER, Chief Judge.

The Supreme Court granted certiorari in this case and vacated our judgment. Environmental Defense Fund v. City of Chicago, 948 F.2d 345 (7th Cir.1991), vacated, — U.S. -, 113 S.Ct. 486, 121 L.Ed.2d 426 (1992). The Court has remanded the case for reconsideration in light of a memorandum issued by the Administrator of the Environmental Protection Agency (“EPA”) to regional administrators about the “Exemption for Municipal Waste Combustion Ash From Hazardous Waste Regulation Under RCRA Section 3001(i).” Memorandum of William K. Reilly, Administrator, Environmental Protection Agency, dated September 18, 1992. We have requested and received Circuit Rule 54 Statements of Position from both parties. In our earlier opinion, we ruled that ash generated in the combustion of municipal waste is subject to the regulatory scheme governing hazardous waste set forth in Subtitle C of the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901-6992k (“RCRA”). This order assumes familiarity with our earlier opinion in this case, which appears at 948 F.2d 345 (7th Cir.1991).

The EPA memorandum explains the agency’s new interpretation of Section 3001© of RCRA, 42 U.S.C. § 6921©. The agency’s new interpretation represents a change in the agency’s prior official position that ash generated by the combustion of municipal waste is not included in the Section 3001© exemption. See 50 Fed.Reg. 28,725-26 (July 15, 1985). Hence, the EPA’s interpretation now conflicts with ours.

The agency’s change of position and Administrator Reilly’s memorandum explaining it do not persuade us that our analysis of the RCRA was in error. As we explained in the original opinion, the 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. 948 F.2d at 350. This additional change of position does not alter that conclusion.

Administrator Reilly explained the change of position is justified because the language of Section 3001© is ambiguous and its legislative history supports the agency’s conclusion that the ash should be exempted under Section 3001©. These arguments were presented to this court by the City and we considered and rejected them, finding that the plain language of the statute is dispositive. The EPA offers no new support for these arguments in its memorandum, and we continue to find them unpersuasive. Further, because we believe the language of Section 3001© is clear, the public policy arguments Reilly discusses in the memorandum cannot override the mandate of the statute. Only Congress may change the law in response to policy arguments, courts may not do so.

Accordingly, upon reconsideration of the parties’ statements of position and the memorandum, we hold that the EPA memorandum does not affect our opinion or judgment in this case.