New York Times - 3 May 94

Prof. Robert B. Laughlin
Department of Physics
Stanford University, Stanford, CA 94305
(Copied 16 Nov 09)

Justices Decide Incinerator Ash Is Toxic Waste

Published: Tuesday, May 3, 1994

In a decision that could substantially increase the cost of waste disposal, the Supreme Court ruled today that any toxic residue created by burning household and industrial waste in municipal incinerators must be treated as hazardous waste and not dumped in ordinary landfills.

The 7-to-2 decision interpreted a Federal law governing hazardous waste, the Resource Conservation and Recovery Act of 1976. For years the law has been the subject of administrative and judicial confusion about its application to the ash left by the new generation of municipal incinerators that burn trash and produce energy.

Hazardous waste requires storage in specially constructed leak-proof sites and other handling that can be several times more expensive than that of conventional waste. Fearing such higher costs, a large coalition of municipal, county and state governments had urged the Court to interpret the law as exempting the ash from regulation as hazardous waste.

Many of these operators said that the ruling would not force the closing of any incinerators, and that they were trying to estimate how much their expenses would increase. The operators and groups that oppose the incinerators said that the ruling might derail plans for new incinerators, including one planned for the Brooklyn Navy Yard.

Justice Antonin Scalia, writing for the majority, said Congress had not created an exemption for the ash. He noted that while Congress explicitly exempted municipal incinerators from Federal regulation under a variety of circumstances, the law did not mention ash and "simply cannot be read" to support the cities' argument.

The decision was a victory for the Environmental Defense Fund, a Washington group that had sued to have the ash deemed a hazardous waste. The Environmental Protection Agency has changed its mind several times on the meaning of the law. In its latest policy, adopted in 1992 in the closing months of the Bush Administration, the agency concluded that municipal incinerator ash was exempt from regulation.

The Clinton Administration told the Justices that while the statute was "ambiguous," the agency's latest interpretation was reasonable and should be accepted by the Court.

Reflecting the widespread confusion over the law, the Environmental Defense Fund had received opposing and nearly simultaneous rulings on the issue from two Federal appeals courts. That judicial conflict set the stage for the Court's ruling today.

This case was an appeal by Chicago from a 1993 ruling by the United States Court of Appeals for the Seventh Circuit. The appeals court had held that the ash generated by the city's Northwest Waste-to-Energy Facility had to be tested for toxicity and handled as hazardous waste if it exceeded Federal standards for elements like cadmium and lead.

Earlier Rulings Conflict

In a case that the Supreme Court did not review, the Environmental Defense Fund lost a virtually identical suit against the operator of a Westchester County incinerator in Peekskill, N.Y., when the United States Court of Appeals for the Second Circuit, in Manhattan, ruled that the Resource Conservation and Recovery Act's requirements did not apply to incinerator ash.

The New York metropolitan area has a high concentration of energy-converting incinerators. In Connecticut, incinerators burning a total of 6,000 tons of trash a day account for 62 percent of the state's trash, by far the highest proportion in the country. The Chicago incinerator handles 14 percent of the city's solid waste, while producing steam that Chicago sells for $1.5 million a year. Nationwide, there are some 125 of these incinerators, with 40 more being planned.

In its Supreme Court appeal, Chicago warned that it would cost more than 10 times as much to dispose of its incinerator ash in a special hazardous waste landfill, which would charge $453 a ton while an ordinary landfill charges $42 a ton.

Calculating the actual impact is more complex. 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 that of ordinary landfills.

Costs May Be Limited

Further, the ruling today does not mean that all ash will automatically be considered hazardous waste. It will be up to the municipalities to test the ash for compliance with Federal standards. Karen Florini, a lawyer for the Environmental Defense Fund, said in an interview today that municipalities could take steps to lower the toxicity of the residue.

Ms. Florini said the main source of the dangerous chemicals in municipal trash was discarded batteries and electronic equipment, which can be separated from the trash before incineration. She also said that the ash that remains at the bottom of an incinerator is usually much lower in toxins than the ash that rises to the top. Although most municipalities automatically combine the two types of ash, that step can be avoided, she said.

"This is not brain surgery," Ms. Florini said. "This decision gives municipalities pollution-prevention incentives that are realistically available."

The source of confusion in the law is Section 3001(i), which exempts municipal incinerators from Federal hazardous waste regulation in a complex series of provisions that arguably apply to the incinerator residue as well as the incinerator itself. But finding that Congress failed to mention the residue, Justice Scalia concluded, "The provision quite clearly does not contain any exclusion for the ash itself." Under Justice Scalia's approach to interpreting statutes, that "plain meaning," rather than the law's history or the agency's view, determined the outcome.

Chief Justice William H. Rehnquist and Justices Harry A. Blackmun, Anthony M. Kennedy, David H. Souter, Clarence Thomas and Ruth Bader Ginsburg joined the opinion, Chicago v. Environmental Defense Fund, No. 92-1639. Justice John Paul Stevens dissented in an opinion that Justice Sandra Day O'Connor joined. They said that given the ambiguity in the law, the Court should have deferred to the Environmental Protection Agency's view.

There were also these developments at the Court today:

Gotti Appeal Rebuffed

Without comment, the Justices turned down appeals today in three high-profile criminal cases. The Court refused to review the murder and racketeering conviction of John Gotti, the Mafia boss who received a life sentence in 1992 for conspiring to commit several murders. His conviction was upheld last year by the Second Circuit (Gotti v. U.S., No. 93-1400).

The Court also turned down an appeal by Raymond J. Patriarca, a prominent organized crime figure in New England who was challenging tha nine-year sentence he received for racketeering offenses to which he pleaded guilty in 1991 (Patriarca v. U.S., No. 93-1350).

Finally, the Court rejected an appeal brought by a doctor, Cecil B. Jacobson, who ran a fertility clinic in Vienna, Va., and used his own sperm to impregnate as many as 75 patients while telling the women the sperm was from anonymous donors. He also used hormone injections to create symptoms of pregnancy in patients who were not pregnant. He was found guilty in 1992 on Federal mail fraud and perjury charges and was sentenced to five years in prison (Jacobson v. U.S., No. 9301275). Drug Tests

Without comment, the Court refused to hear an appeal brought by the University of Colorado from a ruling that its random drug-testing program for athletes was unconstitutional. The Colorado Supreme Court ruled last year that the program violated the students' right not to be subject to unreasonable searches as well as their right to privacy (U. of Colorado v. Derdeyn, No.93-1410).

Correction: May 4, 1994, Wednesday - A headline yesterday about the Supreme Court's decision on Federal regulation of incinerator ash misstated the ruling. The Court said the ash had to be tested, and handled as hazardous waste if it turned out to be toxic; it did not decide that the ash is toxic waste. Because of an editing error, the article about the decision misstated the goal of a suit filed by the Environmental Defense Fund that led to the decision. The fund sued to have the ash brought under the regulatory structure of the Resource Conservation and Recovery Act; it did not sue to have all ash deemed a hazardous waste.