A publication of Work On Waste USA, Inc., 82 Judson, Canton, NY 13617 315-379-9200 January 15, 1993

The 7th Circuit Court of Appeals
rules, for the second time,
that ash from municipal waste
incinerators is a hazardous waste.

Excerpts from the January 12, 1993, decision of the 7th Circuit Court of Appeals:

“The [Supreme] 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...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. § 6901-6922k (‘RCRA’)...The EPA memorandum explains the agency’s new interpretation of Section 3001(i) of RCRA, 42 U.S.C. § 6921(i). 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(i) 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’s 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(i) is ambiguous and its legislative history supports the agency’s conclusion that the ash should be exempted under Section 3001(i). These arguments were presented to this court by the City [of Chicago] 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(i) 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 judgement in this case...” For a copy of this decision please send a SASE to Waste Not. (Also see Waste Not #s 174, 218.)

The Environmental Defense Fund (EDF) and the Chicago-based Citizens for a Better Environment brought this suit against the City of Chicago. R. Edward Wilhoite, Jr., of the Chicago-based firm Lerner and Wilhoite, was EDF’s pro bono counsel before the Seventh Circuit Court. According to Attorney Wilhoite, the City of Chicago has indicated that it will appeal this decision to the U.S. Supreme Court. Dr. Richard Denison, a senior scientist at EDF, has been responsible for the most comprehensive analysis on municipal solid waste incinerator ash in the U.S. by a scientist not sponsored by the incinerator industry. We recommend the whole series of papers produced by Dr. Denison on the ash issue. According to an 8-24-92 Memorandum from Denison:

“...ash leachates frequently contain levels of one or more of these
toxic heavy metals that exceed, in some cases by considerable amounts,
their respective federal drinking water standards (DWS).
Cadmium: By almost 3 orders of magnitude (levels up to 812-fold higher than the DWS).

Chromium: By almost 2 orders of magnitude (levels up to 76-fold higher than the DWS).

Lead: By almost 3 orders of magnitude (levels up to 707-fold higher than the DWS).

Mercury: By as much as 4-fold”

Dr. Richard Denison, EDF, 1875 Connecticut Avenue, NW, Washington, DC 20009. Tel: 202-387-3500.

Waste Management Inc. proposes new corporate name while it shuffles its assets into an “increasingly complicated capital structure” that “has made analysis of its operations difficult.According to the Wall Street Journal, 1-20-93, pg B5: “Waste Management Inc.’s founder and chairman Dean L. Buntrock...wants to wipe the word ‘waste’ out of the corporate name. The company, the world’s largest trash hauler and dump operator, said it plans to change its name to WMX Technologies Inc. - a combination of its stock market symbol and the fact that its 65,000 employees do more than heave trash into a hole in the ground...Waste Management, based in Oak Brook, Ill., has broaded from its garbage-handling business to become a top engineering and construction and environmental consulting company, in addition to handling hazardous waste and operating trash-to-energy incinerators. ‘We didn’t want the connotation...of managing wastes’ to undermine the company’s global marketing efforts, Mr. Buntrock said. The new name has an added benefit: it matches the vanity license plates on Mr. Buntrock’s car. Stockholders will be asked to approve the name at the company’s May 14 annual meeting...” The Wall Street Journal reported on 11-16-92, pg C-9:Waste Management Inc. plans to consolidate major parts of three publicly traded companies it controls into a separate company, the latest shuffling of assets by the garbage-hauling giant aimed at adding to its stock market value. The new company, Rust International Inc., would be formed by combining the engineering and construction units of Wheelabrator Technologies Inc.; the hazardous-waste cleanup business of Chemical Waste Management Inc.; and Brand Cos., an asbestos cleanup and construction services concern....Rust, to be based in Birmingham, Ala., would give Waste Management a more traditional engineering and construction company, like Fluor Corp., with which to pursue huge Department of Energy and other cleanup work expected to cost tens of billions of dollars over the next 20 years...Waste Management, based in Oak Brook, Ill., owns majority stakes in Wheelabrator, the biggest operator of trash-to-energy plants; Waste Management International PLC, which operates the overseas trash and hazardous-waste businesses; and Chemical Waste, which in addition to hazardous-waste dumps and incinerators, owns a majority of Brand. The company’s increasingly complicated capital structure has made analysis of its operations difficult...Waste Management Chairman Dean L. Buntrock and President Phillip B. Rooney still maintain tight control over all the units. ‘They’re just changing the structure that’s visible to us,’ said Douglas Augenthaler, a trash industry stock analyst at Oppenheimer & Co. ‘It’s all Waste Management’...For Wheelabrator, transferring the engineering and construction business would give it the chance for a faster growth rate from a smaller revenue base as it adds each new trash incinerator. Chemical Waste, meanwhile, would consolidate Rust’s results with its own because of majority ownership, making it a bigger company on paper...” (Re: Von Rolls’ incinerator in E.Liverpool, Ohio: Rust constructed incinerator; Chemical Waste will deliver waste to incinerator & provide landfill space, while Wheelabrator holds the American license for Von Roll technology.)

Dioxin risks are less than drinking one glass of beer!

“...Since communism has lost respectability, environmentalism has become the new attack against capitalism...In their quest for control, the red-turned-green Communist agenda calls for lies and half-truths to create mass panic...there was the Alar hoax and the Times Beach dioxin hoax. As it turns out, cancer risk from Alar and dioxin are less than that of drinking one glass of beer. Legitimate concern for environmental issues is one thing, ‘Chicken Littlism’ and deliberate deceit is another.” Statement by Walter Williams, (he teaches economics at George Mason University, Fairfax, Virginia), in a 12-28-92 broadcast by National Public Radio/ALL THINGS CONSIDERED. (Waste Managment Inc. is a sponsor of Nat’l Public Radio.)

WASTE NOT # 224. 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.