A publication of Work On Waste USA, Inc., 82 Judson, Canton, NY 13617 315-379-9200 MAY 1994

The work of the Environmental Defence Fund’s senior scientist, Dr. Richard Denison, made this decision possible. Dr. Denison has been the country’s most articulate advocate for regulating ash as a hazardous waste. The Supreme Court’s ruling is a significant rebuke to the Federal EPA and the incinerator industry who have done everything possible to prevent the ash from being regulated as a hazardous waste. The Court’s decision means that ash will have to be treated as a hazardous waste unless toxicity tests prove otherwise, i.e., guilty until proven innocent. On May 27 incinerator operators will have to adhere to this ruling. The likely first action will be that incinerator operators will handle the fly ash separately, instead of mixing it with the bottom ash, and arrange to have the fly ash disposed at regulated hazardous waste landfills.

The incinerator that landed this case in court is the 1,600 ton-per-day mass-burn Chicago facility. This went on line in 1970 and has as its only pollution control, an electrostatic precipitator. According to a May 3, 1994, report in the New York Times, the Chicago Commissioner of Environment, Henry Henderson, said “the city was quietly anticipating the decision” and that “new equipment would be installed to allow incinerator employees to retrieve batteries, paint cans and other trash containing lead and cadmium to reduce the levels of both metals in the ash. He said a new storage area was being added to the plant so that ash with higher levels of metals could be separated from less contaminated ash. But Mr. Henderson said the city anticipated that in spite of the changes, some 80 tons of ash a day would not meet the safety limit and would have to be shipped to a hazardous waste landfill at a cost of $200 a ton, or an extra $4 million to $5 million a year. In addition, the safety tests cost $1,000 to $1,500 each, he said, and it is not clear how often the tests will be needed.” (Incinerator Operators Say Ruling Will Be Costly, p A18). According to another NYT report: “In its Supreme Court appeal, Chicago warned that it would cost more than 10 times as much to dispose of its incinerator ash as in a special hazardous waste landfill, which would charge $453 a ton while an ordinary landfill charges $42 a ton...A recent Environmental Protection Agency study said the cost of hazardous waste landfills was not 10 times greater but somewhat more than 3 times greater than ordinary landfills.” (May 3, 1994, Justices Decide Incinerator Ash is Toxic Waste, front page continued to page A18.)

The test for ash is called the TCLP (Toxicity Characteristic Leaching Procedure) which was designed by the U.S. EPA in collaboration with the incinerator industry. This test is designed not to discover the total metal content in the ash, it only tests what will leach out. The samples fail the TCLP test when heavy metals (except for lead) leach out at over 100 times the safe water drinking standard. (Effective on December 7, 1992, the U.S. EPA set the safe drinking water standard for lead at .015 parts per million (ppm). Prior to Dec 7th, the EPA’s drinking water standard for lead was .05 ppm. When the EPA tightened the drinking water standard for lead it did not change the TCLP lead toxicity standard of 5 ppm. Currently the TCLP for lead is over 300 times the safe water drinking standard. If the EPA amends the TCLP for lead, more ash will fail the toxicity tests.) One of the many tricks employed by incinerator operators to help them pass the TCLP test is to treat the fly ash with phosphoric acid prior to the testing. The phosphoric acid converts the soluble lead into the highly insoluble substance lead phosphate, thereby fixing the lead in the ash. While this treatment enables the ash to pass the leachate tests, Dr. Richard Denison has warned that (a) lead phosphate is a suspected human carcinogen and (b) this strategy may not tie up lead indefinitely in the landfill, since phosphate is known to be a nutrient for all living things including microorganisms. A striking example of what might happen was revealed in the leachate tests at the ash monofill in Newport, N.H., designed for Wheelabrator’s 200 tpd incinerator in Claremont. According to an April 9, 1993 letter from Dr. Richard Denison to Mr. George Carlson of the N.H. Water Quality/Permits & Compliance Bureau:

“Despite the treatment of fly ash from the Claremont incinerator before disposal with a ‘lead-immobilizing agent,’ the levels of lead in the leachate have risen sharply in recent months, and now routinely exceed EPA’s action level for lead in drinking water, often by significant amounts...Monthly average levels of lead in the leachate have exceeded EPA’s action level for each of the last last 6 months and for 9 of the last 12 months. The highest levels of lead ever recorded occurred in the last two months [Jan and Fed 1993]. Average levels exceeded the the EPA action level by 41 and 20 times, respectively. The highest lead level ever recorded in an individual leachate sample occurred in January [1993]; 1.5 milligrams per liter (mg/L), exceeding the EPA action level by 100-fold.”

LEAD: “Of the combustible portion of MSW, which is most likely to contribute to the toxicity of air emissions and ash, EPA estimates that 71% of the lead in this fraction is contributed by plastics, with the largest portion of that coming from packaging materials. Lead is used as a stabilizer in polyvinyl chloride (PVC) plastics, and as a pigment in many different types of plastics. Other uses of lead pigments besides plastics (e.g., in colored printing inks that may be used on paper or plastic packaging) account for another 24% of the lead in combustible MSW.”

CADMIUM: “Of the combustible portion of MSW, almost all (88%) of the cadmium comes from plastics. Other uses of cadmium besides plastics (e.g., in colored printing inks used on packaging) account for virtually all of the rest (11% of the cadmium in combustible MSW.”

(1) Recycling & Incineration, Edited by Richard Denison and John Ruston, published by Island Press, 1990, p 180, Table 5.2

ESTIMATED POUNDS OF METAL IN EACH TON METAL CONCENTRATIONS IN FLY ASH

OF MSW INCINERATOR ASH: (Ref 3) AND NATURAL SOILS: (Ref 4)

Metal Fly Ash Bottom Ash Range of Concentrations in parts per million

Chromium 0.09 lb. 0.1 lb. Metal Fly Ash Natural Soils

Cadmium 0.56 lb. 0.07 lb. Lead 2,300-50,000 10-13

Lead 7.9 lb. 5.6 lb. Cadmium 100-2,000 0.1-0.2

Arsenic 0.14 lb. 0.2 lb. Arsenic 10 - 750 2

(Ref 3) Hazardous Waste News #92, August 29, 1988, published Mercury 9 - 300 0.05 - 0.08

by Environmental Research Foundation, PO Box 5036, (Ref 4) Vogg et al, 1986.

Annapolis, MD 21403-7037.

Background to the U.S. Supreme Court Case:

April 24, 1991: 2nd Circuit Court of Appeals in New York City ruled in Environmental Defense Fund (EDF) vs. Wheelabrator that MSW incinerator ash is a non-hazardous waste.

November 18, 1991: U.S. Supreme Court refused to hear EDF’s appeal of the 2nd Circuit Court decision.

November 19, 1991: 7th Circuit Court of Appeals in Chicago 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. EDF brought this suit against the City of Chicago in 1988. (See Waste Not # 173.)

November 20, 1991: The city of Chicago state their intention to appeal the Nov. 19 ruling to the U.S. Supreme Court.

September 18, 1992: The Supreme Court, in deciding to hear the appeal, requested the U.S. Justice Department to ask EPA what their position was. On Sept. 18, William Reilly, as head of the U.S.EPA, issued a memorandum titled Exemption for Municipal Waste Combustion Ash from Hazardous Waste Regulation Under RCRA Section 3001(i) to all regional EPA administrators. The EPA did not note that the memo was written in response to the Supreme Court’s request. The incinerator industry celebrated the memo and circulated it widely in all the communities where they had incinerator proposals. (See Waste Not #218.)

November 16, 1992: U.S. Supreme Court remands the case back to the 7th Circuit Court of Appeals to reconsider their decision in light of the September 18th EPA memorandum.

January 12, 1993: The 7th Circuit Court of Appeals in Chicago states that the EPA memo is unpersuasive and rules again that ash from MSW incinerators should be regulated as a hazardous waste. (See Waste Not # 223.)

May 2, 1994: The U.S. Supreme Court ruled in a 7-2 decision that MSW incinerator ash must be regulated under federal hazardous waste law. Justice Antonin Scalia authored the opinion with agreement from Chief Justice William Rehnquist and Justices Harry Blackmun, Anthony Kennedy, David Souter, Clarence Thomas and Ruth Bader Ginsburg. Justices John Paul Stevens and Sandra Day O’Connor dissented.