A publication of Work On Waste USA, Inc., 82 Judson, Canton, NY 13617 315-379-9200 MARCH 1995

The Great Incinerator Ash Scam:
Part 1.

to test MSW incinerator ash will allow
to be classified as a NON-HAZARDOUS WASTE.


May 27, 1994                                               January 25, 1995               

Letter to Carol Browner, US EPA                     Carol Browner’s Address to the        

Administrator                                         U.S. Conference of Mayors.          

from                                             “...With her agency under attack in      

J. Thomas Cochran,                           Congress for issuing too many costly rules,  

Exec. Director, U.S. Conference of Mayors     EPA Administrator Carol Browner sought out  

 “The U.S. Conference of Mayors and its         city officials Wednesday at the winter    

affiliate, The Municipal Waste Management      meeting of the Conference of Mayors and    

Association are extremely dismayed by the      took along some presents...she told the    

announcement made by the U.S. Environmental  mayors the EPA would allow a testing method  

Protection Agency on Tuesday, May 24, 1994        for municipal incinerator ash that      

that the Agency intends -- essentially       essentially would ensure that the ash would  

overnight and without warning -- to subject    not be classified as a hazardous waste.    

ash from waste-to-energy facilities to          The decision is critical for scores of    

potential regulation as a hazardous waste    cities, including Chicago and Detroit, that  

under Subtitle C of the Resource                 will save millions of dollars in ash     

Conservation and Recovery Act.  In its       disposal costs each year...‘We have decided  

announcement, EPA has ignored the concerns    that the ash should be tested at the point  

of the cities completely, creating yet         when it leaves the combustion building,’   

another unfunded mandate on the nation’s       Browner told the mayors, who immediately   

cash-strapped local governments...EPA has      knew that would mean tens of millions of   

ample authority to avoid such results and        dollars in savings because of lower      

we respectfully ask that you exercise this     disposal costs.  Under the EPA rule, the   

authority immediately...It would take        more toxic fly ash in the smokestack can be  

considerable time for facilities to            combined with the less toxic bottom ash    

identify and enter into contracts with             before testing.   EPA officials        

hazardous waste transporters, treaters, and   acknowledged that combining the two types   

disposal facilities, particularly given the    of ash was likely to allow conventional    

current limited capacity for managing             disposal because of lower toxicity      

hazardous wastes that exists throughout the     level...Some environmental groups had     

country.  Even if facilities could somehow   argued that the EPA should test the fly ash  

make the necessary arrangements in time,      separately because it contains the highest  

Subtitle C disposal also would likely be      levels of toxic metals and should undergo   

prohibitively expensive...”                    the same special handling and storage as   

                                               other toxic waste.  Detroit Mayor Dennis   

Excerpts from “Comments of The United          Archer estimated that EPA’s ash testing    

States Conference of Mayors, The National      policy would save cities with municipal    

League of Cities and The Municipal Waste        incinerators a total of $200 million a    

Management Association” submitted in 1994         year.  If fly ash had to be tested      

to the US EPA:   “Ash should be tested at     separately and disposed of as a hazardous   

the point at which it is discarded, i.e.,     waste, it would require spending up to $3   

at the end of the ash management processing      million per incinerator for capital      

system of the resource recovery                 improvements and substantially higher     

facility...”                                  annual operating costs, said Dave Gatton,   

                                             an environmental advisor for the Conference  

                                                of Mayors.”  A.P.  report, January 26,    



EPA Rescues the MSW Incinerator Industry with January 1995 Ash Ruling. When Carol Browner made the announcement in January 1995 that the trash incinerator industry could mix the bottom ash and the fly ash together prior to the toxicity testing required by the Supreme Court ruling of May 2, 1994 (see Waste Not # 280) she gave the kiss of life to a dying industry. Trash incineration is the most unpopular technology since nuclear power. Since 1985 over 280 incinerator proposals have either been defeated outright or put on hold (see Waste Not #s 283-294). Not only is incineration extremely unpopular with citizens, but for those officials who examine the economic liabilities entailed (and who avoid the wooing of the consultants and financiers who can make a fortune out of the hidden taxation of municipal bonding) it is a very dubious economic proposition. One of those economic liabilities is the enormous cost involved of disposing of the ash produced (approximately one ton of ash for every three tons of trash) if it receives a “hazardous waste” designation. How the incinerator industry, and its friends in the EPA and state and regulatory agencies, have done their level best to avoid this designation is a long and convoluted story. As long and convoluted as the story may be, the trajectory of the saga was clearly spelled out by David Sussman (formerly with the EPA and now Vice President for Environmental Affairs for Ogden Martin) in an article which appeared in the Waste-To-Energy Report of September 10, 1986:

“It means finito, morte, the end for the resource recovery industry if ash is treated as hazardous waste...Either that or widespread violations. There is simply no room for four million additional tons annually of ash waste. It would overwhelm all existing hazardous waste fills.”

Carol Browner’s Gift to the Incineration Industry. When many environmentalists read about Browner’s decision on ash testing requirements they probably felt two things: (a) at least she is following the Supreme Court’s ruling that the ash should be tested and (b) she has done a little favor to the incinerator industry by allowing them to dilute the more toxic fly ash with the less toxic bottom ash, prior to testing. However, it was more than a little favor, this is a huge giveaway.

In the other parts of this 4-part series on ash we will give the details of the four developments which have facilitated the bureaucratic detoxification of this hazardous material. These four developments are:

1. The willful avoidance of a requirement to measure the total content of the toxic substances in the ash. This includes toxic metals, like lead, cadmium and mercury, and the dioxins and furans which are known to form on the fly ash particles.

2. The change over from the EP Tox Test (Extraction Procedure Toxicity Test) to the TCLP Test (Toxic Characteristic Leaching Procedure Test). The former test required reaching a pH of 5, the latter does not.

3. The use of large quantities of lime in the air pollution equipment which nullifies the effort to simulate acidic leaching conditions in the testing of the ash.

4. The mixing of the fly ash (10-20% of the total) with the bottom ash (80-90% of the total) prior to testing enables the lime in the fly ash to protect the bottom ash also from exposure to acidic leaching conditions and thus allowing the “combined” ash to pass the test artificially.

Text of January 1995 “EPA Environmental Fact Sheet” - EPA 530-F-95-004:
“EPA Determines that Ash from Waste-To-Energy Facilities is Subject
to Hazardous Waste Regulations Upon Exiting the Combustion Building.”

“Background. On May 2, 1994, the U.S. Supreme Court issued an opinion interpreting Section 3001 (1) of the Resource Conservation and Recovery Act (RCRA). The Court held that, although municipal waste-to-energy (WTE) facilities that burn household wastes alone, or in combination with nonhazardous wastes from industrial and commercial sources, are exempt from regulation as hazardous waste treatment, storage, or disposal facilities, the ash that they generate is not exempt. Generally, two basic types of ash are collected at WTE facilities: bottom ash from the furnace and fly ash from the air pollution control equipment. EPA estimates that nearly 80 percent of WTE facilities routinely combine the bottom ash and fly ash. Bottom ash is approximately 75-80 percent of the total ash by weight. Studies show that ash (usually fly ash) sometimes can be classified as hazardous waste because it can leach lead or cadmium above levels of concern. WTE facilities must determine if the ash they generate is hazardous. This determination can be made by either testing or by using knowledge of the combustion process to understand whether the ash would be hazardous. The Court ruling did not specify when or where this determination had to be made. Action. Because the Court did not specify where a hazardous waste determination should be made, EPA is designating this point. EPA interprets Section 3001 (1) of RCRA to first subject the ash generated by a WTE facility to hazardous waste regulations when it exits the combustion building following the combustion and air pollution control processes. This means that owners and operators of WTE facilities may combine bottom ash and fly ash inside the combustion building before making a hazardous waste determination. This action is a statutory interpretation, and does not change the Supreme Court decision. Ash that is hazardous waste must be managed in full compliance with RCRA hazardous waste management rules. The Agency will vigorously enforce against violation under RCRA. Landfilling of nonhazardous ash must occur in a facility that meets stringent federal design and operating standards, which are fully protective of human health and the environment.”

WASTE NOT #315. 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 $US50; Overseas $65. Editors: Ellen & Paul Connett, 82 Judson Street, Canton, New York 13617. Tel: 315-379-9200. Fax: 315-379-0448.