A publication of Work On Waste USA, Inc., 82 Judson, Canton, NY 13617 315-379-9200 November 12, 1991

Correction to Waste Not # 172: Helen Norris was elected as Alderwoman in Holyoke, MASSACHUSETTS. We printed Holyoke, NH.

Court rules incinerator ash from municipal waste incinerators is a hazardous waste in Illinois, Indiana & Wisconsin

Excerpt from the 7th Circuit Court of Appeals ruling that municipal waste incinerator ash is hazardous: 11-19-91

“We should take at face value a statute’s plain language so
long as our reading is not absurd; we should ignore a
legislative history that results in a reading that is. It is
unlikely that Congress, in an express effort to promote
the proper disposal of dangerous substances that other-
wise would seep into the ground and water table, would
sanction the dumping of massive amounts of hazardous
waste in the form of ash into ordinary landfills. Accord-
ingly, we hold that the ash generated from the incinerators
of municipal resource recovery facilities is subject to
X regulation as a hazardous waste under Subtitle C of RCRA.”

For a copy of the 7th Circuit Court of Appeals ruling send $1 to Waste Not.

The background to the ash debate:

4-24-91: 2nd Circuit Court of Appeals in NYC ruled in Environmental Defense Fund (EDF) vs. Wheelabrator that MSW incinerator ash is a non-hazardous waste. This ruling applies to NEW YORK, VERMONT and CONNECTICUT.

11-18-91: U.S. SUPREME COURT refuses to hear EDF’s appeal of the 2nd Circuit Court decision.

11-19-91: 7th Circuit Court of Appeals in Chicago, IL, reversed a lower court decision and ruled in EDF et al. vs. the City of Chicago that MSW incinerator ash is a hazardous waste under current federal law. This ruling applies to IL, IN and WI.

11-20-91: Chicago states their intention to appeal the 11-19-91 ruling to the U.S. Supreme Court.

***According to an 11-20-91 press release from the Environmental Defense Fund: “The litigation (against the City of Chicago) was brought in January of 1988 by the Environmental Defence Fund (EDF) and Citizens for a Better Environment (CBE) against the City of Chicago, the owner and operator of the city’s Northwest MSW incinerator. The incinerator produces approximately 130,000 tons of ash each year, which is currently sent to [WMI’s landfill -known as Joliet ESL Landfill, located in Elwood, IL] for disposal. Samples of the ash have routinely failed a standard toxicity test specified under federal regulations for use in determining whether a waste is legally hazardous. In bringing the lawsuit, EDF and CBE alleged that the City was in violation of federal law by storing and transporting the hazardous ash, and offering it for disposal, as a nonhazardous waste. The Seventh Circuit’s ruling affirms that position...The ruling is based on an interpretation of Section 3001 (i) of the major federal waste management statute, the Resource Conservation and Recovery Act (RCRA), that exempts energy-recovering MSW incinerators from certain hazardous waste regulatory requirements if such facilities accept only nonhazardous solid wastes from household, commercial and industrial sources. In reversing the lower court decision, the Court of Appeals ruled that Section 3001(i) does not extend to the ash generated by burning such waste. As a result, the ash is subject to the testing requirements of RCRA, and if found to be a hazardous based on such testing, must be stored, transported and disposed of in full compliance with federal hazardous waste regulations...About 8 million tons of ash is already being generated annually in the U.S., with that amount expected to increase as more incinerators come on line. Data compiled by EDF, the Environmental Protection Agency, and others demonstrate that ash frequently exceeds federal hazardous waste standards for lead and/or cadmium, two heavy metals known to be toxic to humans and other organisms at low levels of exposure...”

***Enforcement of the 7th Circuit Court of Appeals. According to EDF attorney Karen Florini, enforcement of this ruling could be implemented 21 days after the judgement was issued. The City of Chicago can file a motion to stay the mandate. Florini noted that the U.S. Supreme Court refuses to hear approximately 90% of the cases brought to it. But with two diametrically opposed court decisions (2nd Circuit Court vs. 7th Circuit Court), the odds are better that the Supreme Court will hear this case if appealed.

***Credit for the hard work on this successful appeal goes to: Richard Denison and Karen Florini of the Environmental Defense Fund, 1616 P Street, NW, Washington, DC 20036; Citizens for a Better Environment, 407 S. Dearborn Street, Chicago, IL 60605, Tel: 312-939-1530; and to EDF’s pro-bono counsel R. Edward Wilhoite, Jr., of the firm Despres, Schwartz and Geoghegan of Chicago, IL.

Chicago’s 1,600 tpd Incinerator:
Northwest Waste-to-Energy Facility
Owned & Operated by the City of Chicago
ESP for pollution control, operational since 9-1-70
Steam sold to the BRACH CANDY CO.

Chemical Waste Management Environmental Sanitary Landfill (ESL) located outside of Joliet in Elwood, IL, and known as Joliet ESL. This landfill is not permitted to take hazardous waste. Chemical Waste Management, owned by Waste Management Inc., operated a hazardous waste landfill at this site. In negotiations for an expansion to continue as a hazardous waste landfill the IL EPA opposed continued landfilling of hazardous wastes because of groundwater monitoring problems at the landfill. The IL EPA was overruled on this because they “couldn’t prohibit future activities based on past activities.” Chemical Waste Management opted to operate a special waste monofill , which it has done for the last 3-4 years. This landfill also takes municipal waste incinerator ash from the 1,000 tpd Hennepin County, MN, incinerator; the ash from the 175 tpd Waukesha, WI, incinerator; and ash from an unidentified incinerator in northern Indiana. Chicago’s incinerator ash is estimated at 130,000 tons per year. Chicago began sending its incinerator ash to Joliet ESL in January 1989.

Hazardous waste landfills in Illinois: According to the Illinois EPA there were three hazardous waste landfills in IL, but BFI, which operates the Winthrop Harbor Landfill has requested that this currently permitted hazardous waste landfill be changed to a non-hazardous waste landfill. BFI informed the IL EPA that they are getting out of the hazardous waste sector. The two other landfills are: Chemical Waste Management’s CID Landfill in Calumet City and Peoria Disposal Landfill in Peoria.

2 YEAR HAZARDOUS WASTE INCINERATOR MORATORIUM IN ILLINOIS. This became official in November 1991. Originally the State Legislature called for a 5-year moratorium, but it was amended by the Governor to two years. The Governor also deleted provisions that would have prohibited the burning of waste oils in cement kilns. This law also requires any hospital that burns on site, or ships its waste off site, to develop and implement a waste reduction plan. Three groups worked hard for this moratorium: Illinois Environmental Council, Citizens for a Better Environment and Citizens Against Pollution Committee. For more information contact Kevin Greene at Citizens for a Better Environment, 407 S. Dearborn St., Chicago, IL 60605. Tel: 312-939-1530

WASTE NOT # 173 A publication of Work on Waste USA, published 48 times a year. Annual rates are: Groups & Non-Profits $50; Students & Seniors $35; Individual $40; Consultants & For-Profits $125; Canadian $US45; Overseas $65. Editors: Ellen & Paul Connett, 82 Judson Street, Canton, NY 13617. Tel: 315-379-9200. Fax: 315-379-0448.