24 ELR 10536 -- Sackcloth and Ash: City of Chicago v. Environmental Defense Fund

Sackcloth and Ash: City of Chicago v. Environmental Defense Fund

James V. DeLong

James V. DeLong is a lawyer and consultant in Washington, D.C., affiliated with the regulatory and economic analysis firm of Sanders International, Inc. He is a 1963 graduate of Harvard Law School.

[24 ELR 10536]

On May 2, 1994, the U.S. Supreme Court joined -- but certainly did not end -- a debate about the disposal of ash produced from burning municipal solid waste in waste-to-energy (WTE) incinerators. In City of Chicago v. Environmental Defense Fund,¹ the Court decided that such ash is not automatically exempt from classification as hazardous waste under the Resource Conservation and Recovery Act (RCRA).² As a result, incinerator operators are responsible for testing their ash and, if it contains hazardous substances at levels in excess of those prescribed by the U.S. Environmental Protection Agency's (EPA's) test for "the characteristic of toxicity," for handling it as hazardous waste.

This Dialogue first provides background on the emergence of WTE incinerators and the controversy surrounding ash from such facilities. It next reviews City of Chicago and, finally, puts the case into perspective by identifying some of its probable consequences, including effects on the incinerator industry, on disposal of municipal solid waste, and on municipalities.

Background

The Emergence of WTE Facilities

Waste-to-energy is the child of two crises. The first was the energy crisis of the 1970s: When petroleum reached $ 40 per barrel with no ceiling in sight, alternative energy sources, such as extracting energy value from the tons of paper and plastic discarded each year, seemed like a fine idea. The second was the landfill crisis of the 1980s: When it appeared that the nation was running out of space to dispose of municipal solid waste and that tipping fees were climbing as fast as energy prices, reducing the volume of trash by 65 to 80 percent through incineration also seemed logical.

Both crises were ephemeral. Energy prices headed down, and fossil fuels now cost about one-half what they cost in 1980.³ It has also become apparent that the United States has no shortage of space in which to site landfills. The rise of "megafills" capable of handling huge volumes of trash, combined with improved transportation arrangements, is producing a glut of capacity. This is imposing a cap on tipping fees, which will probably stabilize at about $ 30 per ton.⁴

The evaporation of these two crises has seriously undermined the economic base of the municipal waste incineration industry, and the number of incinerators planned or operating has declined from 368 in 1988 to 171 in 1993.⁵ The industry as a whole is under great pressure to keep operating costs down.

The Controversy About Municipal Solid Waste Combustion Ash

WTE facilities burn municipal solid waste, which includes household and nonhazardous commercial waste. This produces ash. The ash contains constituents, notably lead and cadmium, that are used by EPA to identify waste that exhibits [24 ELR 10537] "the characteristic of toxicity."⁶ If the concentration of any of the constituents exceeds levels specified by EPA, then, under RCRA, the ash would normally be classified as hazardous waste and could not be discarded in municipal waste landfills.⁷ Instead, it would be handled, transported, treated, and discarded in accordance with the rules governing hazardous wastes.

RCRA, however, contains a potential escape clause. Section 3001(i) says that a WTE facility "shall not be deemed to be treating, storing, disposing of, or otherwise managing hazardous wastes" for purposes of RCRA regulation as long as the facility accepts only household waste and non-hazardous industrial or commercial waste.⁸ This means that a WTE facility that meets the listed conditions cannot be regarded as a RCRA treatment/storage/disposal facility (TSDF), and thus is not subject to the extensive regulations under Subtitle C of RCRA that apply to the TSDFs. The question presented in City of Chicago was whether this exemption extended further: Does § 3001(i) automatically exempt the facility from classification as a generator of hazardous waste, and does it mean that municipal solid waste combustion ash is automatically classified as non-hazardous waste?

As usual in any RCRA matter, the issues are complex. The ash issue is especially confusing, however, as a result of Congress' and EPA's murky statements and numerous changes in policy.⁹ In 1980, EPA promulgated a rule exempting household waste from RCRA regulations for hazardous waste and interpreted the rule to apply to treatment residuals, such as ash, but did not address ash that resulted from incineration of household waste mixed with nonhazardous commercial waste.¹⁰ A 1984 statutory change entitled "clarification of household waste exclusion" added § 3001(i) to the Act. EPA's 1985 interpretation of the addition declared that the statute exempted the facility but not the ash generated from incineration at the facility.¹¹ In 1990, Congress imposed a two-year moratorium on regulating the ash as hazardous waste under RCRA.¹² In 1992, EPA issued a memorandum reversing its 1985 position and announcing a new interpretation of § 3001(i) to exempt the ash from WTE facilities.¹³ Thus, immediately before City of Chicago, both the industry and EPA were acting under the belief that ash produced from burning municipal solid waste at a WTE facility was exempt from treatment as hazardous waste under RCRA Subtitle C.

Prior to the U.S. Supreme Court's decision, two U.S. appellate courts had reviewed the RCRA status of the ash and reached contrary conclusions.¹⁴ The Second Circuit supported the proexemption position that EPA eventually took in 1992.¹⁵ The Seventh Circuit held that WTE facilities are not exempt from treatment as generators of hazardous waste, based on the plain language of the statute.¹⁶ The latter court refused to give Chevron U.S.A., Inc. v. Natural Resources Defense Council¹⁷ deference to the 1992 memorandum, commenting that EPA had changed its mind so many times that it had forfeited any claim to deference, even if the statute was regarded as ambiguous.¹⁸

City of Chicago v. Environmental Defense Fund

The U.S. Supreme Court's opinion in City of Chicago discusses the general background of RCRA and mentions the complex history of the ash issue, but ultimately turns on the specific wording of § 3001(i). Under the Court's ruling, that section exempts the WTE facility, not the ash.¹⁹ The Court held that the conspicuous absence of the term "generating" from the list of things that a WTE facility "shall not be deemed to be" doing means that a WTE facility can indeed be deemed to be generating hazardous waste.²⁰ Section 3001(i) means that a WTE facility meeting the listed conditions is not a TSDF under RCRA, and nothing further.

The majority opinion deals poorly with one awkward problem. To meet the conditions of the exemption created by § 3001(i), a WTE facility must not accept hazardous waste for burning. Under EPA's Subtitle C regulations, however, a facility that does not accept hazardous waste and burns only household and nonhazardous commercial [24 ELR 10538] waste would not be a Subtitle C TSDF even if § 3001(i) did not exist. It would not be transporting, storing, or disposing of hazardous waste. The Court's holding that § 3001(i) does not exempt a WTE incinerator from classification as a generator of hazardous waste makes the section a tautology: A WTE facility that does not treat hazardous waste is not a hazardous waste treatment facility. This point did not prevail, however, against the absence of a crucial term from the statute.²¹

The dissent takes a deeper draught of legislative history. It argues that the congressional intent behind § 3001(i) was to codify an exemption in EPA's 1980 regulations that clearly included incinerator ash, and to extend the exemption to facilities that took in nonhazardous commercial waste as well as municipal solid waste. The failure to specify that ash was covered and the omission of the crucial term "generate" from the statutory language was, therefore, an unfortunate oversight that should be remedied by the Court.²²

As a matter of overall logic, the dissent has the better argument about what Congress was trying to do, but the majority has the better argument about what it really did, or failed to do. The distinction between "generation" and "treatment" is very important in RCRA, and is known to every expert. The language of § 3001(i) simply does not mention generation. The Court is increasingly -- and properly -- reluctant to serve as a janitor, cleaning up after congressional sloppiness. In the big picture, the costs of regulatory compliance and litigation will be substantially reduced if Congress is forced to say what it means instead of adopting inconsistent statements designed to placate conflicting interest groups and leaving the courts to sort matters out.

Consequences of City of Chicago

Uncertain Legal Requirements

Under RCRA's Land Disposal Restrictions, hazardous waste can be disposed of on land only after it is treated to reduce any threat it might present to human health and the environment.²³ After treatment, it may be placed in a hazardous waste disposal site that complies with EPA regulations. Because EPA considered municipal solid waste combustion ash to be exempt from classification as hazardous waste, the Agency has never promulgated treatment standards for the ash. Without such standards, incinerator and disposal facility operators do not know what to do with newly generated ash. EPA is trying to finesse the problem by treating incinerator ash as a newly identified waste,²⁴ which allows the Agency to take six months to decide on the treatment it must undergo before disposal.²⁵ In the interim, no treatment requirements apply and the ash may be disposed of in any hazardous waste disposal facility. EPA has also given ash disposal site operators six months in which to apply for permits to operate as hazardous waste disposal sites.²⁶

EPA also has grappled with two potential problems regarding ash that was disposed of before City of Chicago. Reliance on EPA's prior interpretation of § 3001(i) does not necessarily shield regulated parties from charges that they violated the law. Thus, any WTE owner or operator that disposed of municipal solid waste combustion ash as nonhazardous waste may have engaged in illegal disposal, and any nonhazardous waste disposal facility that accepted WTE ash arguably violated RCRA Subtitle C requirements. In theory, therefore, such operators could be subject to civil and criminal penalties.²⁷ Moreover, it is conceivable that the operators could be required to test previously disposed-of ash, dig up ash that exceeds toxicity characteristic standards, and ship it to a hazardous waste facility.

EPA's "newly identified" approach avoids these problems, since RCRA generally does not require regulated parties to exhume and re-dispose of newly identified wastes,²⁸ and does not impose retroactive sanctions on people who complied with the law as it existed at the time of disposal.

Because of these concerns, the "newly identified" approach makes perfect sense as a matter of policy, though it is perhaps dubious as a matter of law. The Agency's legal support boils down to an argument that "we did it once before in another context and it worked."²⁹ Given every stakeholder's interest in avoiding the problems regarding application of the City of Chicago holding, this may be sufficient.³⁰

Increased Costs

City of Chicago will have a significant impact on the 171 WTE facilities that currently burn approximately 17 percent of the nation's output of municipal solid waste.³¹ The U.S. [24 ELR 10539] Supreme Court's decision directly increases the cost burdens on WTE facilities in three ways:

* First, facilities must test the ash to determine whether it contains hazardous constitutents in concentrations sufficient to exceed EPA's criteria for toxicity. A full-scale Toxicity Characteristic Leaching Procedure test for all constituents can cost $ 1,000 to $ 1,200.³²

* Second, application of the Subtitle C regulatory scheme to WTE ash creates incentives for expensive overcompliance.³³ If there is an appreciable chance that any subsample of a waste stream might exceed the test limits, the prudent operator will treat the whole stream as hazardous waste.

* Third, any ash that exceeds the criteria level must be managed and disposed of as hazardous waste. The treatment and disposal requirements are a little murky and depend on complex technicalities of RCRA regulation.³⁴ The most probable outcome is that ash that exceeds toxicity limits will require stabilization and disposal in a hazardous waste landfill. The present cost of this is approximately $ 74 per ton for transportation and $ 158 per ton for treatment and disposal, a total of $ 232 per ton of ash generated.³⁵ The ash produced from incineration equals approximately 25 percent of the weight of the original trash.³⁶ Thus, every dollar increase in the cost of ash disposal translates directly into an increase of $ 0.25 per ton in total incineration costs. If all WTE incinerator ash were treated as hazardous waste, the Court's ruling would add $ 58 per ton to the cost of incineration, doubling the current average price of $ 56 per ton.³⁷

The potential for substantial increased costs is real. WTE ash contains lead and cadmium in quantities sufficient to put it on the border between hazardous and nonhazardous status. The testing of ash for the presence of high levels of those substances is complicated by the existence of two distinct types of ash: Fly ash (about 25 percent by weight of the total), which consists of airborne particles captured by stack filters; and bottom ash, which is the heavy residue that remains in the incinerator. A 1989 study found that almost all fly ash samples exceeded tolerable limits for both lead and cadmium, whereas most bottom ash samples were below the limit for lead, and all bottom ash samples were below the limit for cadmium.³⁸ Most samples of combined bottom and fly ash surpassed the limits for lead, but not for cadmium.³⁹

EPA regulations require that wastes be assessed for hazardous characteristics at the point of generation. If a particular waste stream exceeds the limits for a toxicity characteristic, it must be handled as hazardous, not diluted to bring it under the concentration limit.⁴⁰ Those operators whose combined ash passes the test would, of course, prefer to combine it and dispose of it as nonhazardous waste, but if fly ash and bottom ash are regarded as two different waste streams, then each must be tested separately.⁴¹ If either source exceeds toxicity characteristic limits, it must be handled as hazardous waste.

Uncertainties about the composition of ash will add to the costs for WTE facility owners and operators. Batches of municipal solid waste are far from homogeneous, and this affects the ash produced from incineration. The fact that one sample of ash is below the toxicity characteristic limit does not guarantee that the next sample will be. Nor is it feasible to remove all sources of lead and cadmium from the waste stream.⁴² Unless EPA provides detailed [24 ELR 10540] testing protocols and a safe harbor for individuals who follow the protocols -- steps that the Agency usually refuses to take⁴³ -- operators may have no choice but to assume that all municipal solid waste combustion ash is hazardous, even if only a small percentage of the ash actually exceeds the tolerance limits.⁴⁴ Generators act at their peril, and because that peril includes hefty civil and criminal sanctions, both organizations and individuals have substantial incentives for overcompliance. High testing costs reinforce this incentive to treat all waste as hazardous even if a large portion of it is nonhazardous. If this were to happen, 7 to 12 million tons of ash would require such disposal annually, at a total cost of approximately $ 1.6 to $ 2.8 billion.⁴⁵

The City of Chicago decision may have another unanticipated impact on WTE facilities. National policy has favored resource recovery facilities, such as WTE incinerators, while opposing purely destructive incineration.⁴⁶ The § 3001(i) exemption was explicitly inapplicable to the latter. The belief that the exemption covered ash generated by WTE facilities provided an incentive for an operator to build a capacity for energy generation into an incinerator. This raises an interesting question: Does the cost of adding an energy production capability to a solid waste incinerator exceed the value of the energy produced? It is difficult to find analyses comparing the economics of destructive incineration with the economics of WTE incineration. Because energy production constitutes approximately one-third of the revenues of a WTE facility,⁴⁷ the question is whether eliminating this capability would save more than one-third of the costs of the facility. If this is the case, then the loss of the § 3001(i) exemption will push facilities toward converting to straight destruction. Environmentalists are unlikely to approve of such a result.

Competitive Effects

The City of Chicago decision exacerbates concerns about the continued viability of WTE facilities. Incinerators have high sorting costs, because of the need to exclude dangerous items from incineration. Installation of elaborate pollution control equipment to minimize air pollution and measures taken to alleviate truck traffic and odors also impose significant costs on incinerators. Competing with landfills on a per ton cost was difficult for WTE incinerators before City of Chicago imposed the additional costs of treating the ash as hazardous, especially when the capacity glut limits a landfill's ability to raise prices.⁴⁸ Even though most WTE facilities are in the Northeast where tipping fees are higher, the margins are not comfortable.⁴⁹

Before City of Chicago, another recent U.S. Supreme Court decision had already removed a factor in the incinerators' favor in the competition with landfills. In C&A Carbone, Inc. v. Town of Clarkstown, the Court declared that a flow control law, a device used by municipalities to give a monopoly on trash disposal to a preferred disposer, violated the Commerce Clause.⁵⁰ This decision has a negative effect on all such flow control laws, leaving WTE incinerators, municipal recovery and recycling facilities, and other expensive methods of handling trash bare to the cold winds of competition from lower cost combinations of megafills and transport companies.

It is not clear how much of the incinerator industry would survive the increased costs of managing municipal solid waste combustion ash as potentially hazardous. Nor is it clear on whose bill the financial consequences of the industry's demise would fall. Some knowledgeable observers believe many, perhaps most, incinerators were built under contracts that shift the risk to municipalities.

In terms of handling municipal solid waste, the potential disappearance of WTE facilities is of no great importance. The landfill crisis is nonexistent and the benefits of incineration marginal.⁵¹ Municipal solid waste can be disposed of safely, and probably more economically, without incinerators. The issue is important, however, for those who have invested billions of dollars in the facilities, and for the taxpayers in municipalities that might have to pay the costs of ash disposal under contractual obligations.⁵²

These financial problems raise an important concern for EPA. Whether one is personally for or against incineration, for over 15 years national policy has promoted the development of WTE facilities. Investing in environmental technology is risky enough without the additional burden of sudden, costly, and unexpected regulatory obstacles. If EPA wants to encourage such investments in the future, it should do its utmost to ease the pain of owners and financiers of WTE facilities and responsible municipalities. So far, EPA [24 ELR 10541] has taken few meaningful steps in this direction. The Agency has issued a press release reiterating the operators' duty to test and comply,⁵³ a technical assistance draft testing guidance,⁵⁴ a six-month extension of the deadline by which the facilities must apply for a permit to handle the potentially hazardous waste,⁵⁵ and a six-month loosening of land disposal rules applicable to hazardous municipal solid waste combustion ash.⁵⁶ Although these steps help a facility owner learn the procedures that must be followed to deal properly with hazardous waste, they provide only minimal relief from the financial and administrative burden of this sudden regulatory responsibility.

Effects on Recycling

Every WTE incinerator must burn paper and plastic, which are the only parts of the municipal solid waste stream with reasonable heat value.⁵⁷ As a result, a city that supports an incinerator will be half-hearted about recycling these materials. One possible motive for those who supported the lawsuit in City of Chicago may have been to put incinerators out of business and thus eliminate an impediment to the recycling of paper and plastics. If this was indeed their motivation, the winners may be surprised. Recycling paper and plastic is not a money making business, and municipalities are learning that no alchemy will turn this garbage into gold. Recycling programs are absorbing municipal resources, requiring subsidies of more than $ 150 per ton of recyclable material recovered.⁵⁸ The judicial rejection of flow control laws in C&A Carbone may undermine the logical alternative of forcing waste generators to subsidize inefficient recycling.⁵⁹ Thus, trash diverted from WTE incinerators probably will wind up in landfills, not in recycling facilities.

Conclusion

Regardless of whether attempts to exclude WTE ash from RCRA regulation were ever good policy, it is clear that the WTE exemption's demise will have serious ramifications on a number of municipalities. Considering the current levels of municipal upset about drinking water requirements, Superfund, and unfunded mandates generally, it seems unwise for environmentalists to give municipalities yet another cause for distress. They should remember the words attributed to Pyrrhus, King of Epirus, after a bloody victory over the Romans: "Another such victory … and we are undone."⁶⁰

1. 114 S. Ct. 1588, 24 ELR 20810 (1994).

2. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11012.

3. In 1980, a composite weighted average of prices for crude oil, natural gas, and coal was 284.8 cents per million British thermal units (Btus). In 1991, the average was 141.6 cents per million Btus. Both figures are in 1987 dollars. U.S. DEPARTMENT OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 1993, at 580, Table No. 942 (1993).

4. For a lengthy discussion of these issues, see James V. DeLong, Wasting Away: Mismanaging Municipal Solid Waste (Competitive Enterprise Inst., Washington, D.C.), 1994. By 1991, New York City could dispose of its municipal solid waste in landfills for $ 55 per ton, including the costs of baling, transportation, and disposal. Brian Ketcham, Exporting Commercial Waste From New York City, WASTE AGE, Aug. 1991, at 63.

5. Eileen B. Berenyi & Robert N. Gould, Municipal Waste Combustion in 1993, WASTE AGE, Nov. 1993, at 51, 52-54. The 1988 figure includes projects in the early planning stages. The 1993 figure includes only plants that are operational, temporarily shut down for purposes of retrofitting, or in advanced stages of planning. The number of WTE facilities actually operating in 1993 was at an all-time high, but many fewer new facilities were being planned or built. Id. at 52. EPA says that 150 municipal waste combustors are now operating in the United States, of which 80 percent are WTE facilities. Extension of Date for Submission of Part A Permit Applications for Facilities Managing Ash From Waste-to-Energy Facilities, 59 Fed. Reg. 29372, 29373 (June 7, 1994).

6. 40 C.F.R. § 261.24 (1993). This section lists 40 specific constituents, including lead and cadmium, and indicates a maximum allowable concentration level for each. If a liquid extract from the waste contains excessive amounts of any constituent, then the waste exhibits the characteristic of toxicity and is classified as hazardous waste for purposes of RCRA. The extract is obtained by a mandated procedure called the Toxicity Characteristic Leaching Procedure (TCLP), which is set forth in 40 C.F.R. Part 261, Appendix II (1993). The TCLP is theoretically designed to mimic conditions in a municipal waste landfill. The allowable level of each contaminant is based on drinking water standards, adjusted by factor for dilution and attenuation. The allowable concentration for lead is 5.0 mg/L, and that for cadmium is 1.0 mg/L.

7. It is possible for the ash to contain excessive levels of these constituents even if the original waste did not, because: (1) household waste is automatically exempt from classification as hazardous waste no matter what it contains, so it can legally include concentrations of constituents that would cause wastes from businesses to be classified as hazardous, 40 C.F.R. § 261.4(b)(1) (1993); (2) businesses may illegally dispose of hazardous wastes with their municipal trash; and (3) incineration can render hazardous constituents both more concentrated and more leachable.

8. 42 U.S.C. § 6921(i), ELR STAT. RCRA § 3001(i).

9. For the history of the classification of municipal solid waste combustion ash, see the majority and dissenting opinions, City of Chicago, 114 S. Ct. at 1589, 1594, 24 ELR at 20810, 20813. See also 59 Fed. Reg. at 29374; Environmental Defense Fund v. City of Chicago, 948 F.2d 345, 347-50, 22 ELR 20125, 20126-28 (7th Cir. 1991), aff'd on remand, 985 F.2d 303, 23 ELR 20690 (7th Cir. 1993). For a catalogue of EPA's treatment of municipal solid waste combustion ash up to 1989, see ALYCE M. UJIHARA & MICHAEL GOUGH, MANAGING ASH FROM MUNICIPAL WASTE INCINERATORS (Resources for the Future, Washington, D.C.), 15-18, 1989. One can count at least nine changes of position.

10. 45 Fed. Reg. 33084, 33120 (May 19, 1980) (codified as amended at 40 C.F.R. § 261.4(b)(1) (1993)). See the preamble, id. at 33099, for the discussion of treatment residuals.

11. 50 Fed. Reg. 28702, 28725-26 (July 15, 1985).

12. Clean Air Act Amendments of 1990, Pub. L. No. 101-549, § 306, 104 STAT. 2399 (1990) (codified as amended at 42 U.S.C. § 7606, ELR STAT. CAA § 306).

13. Memorandum from William Reilly, Administrator, EPA, to Regional Administrators, EPA, Exemption for Municipal Waste Combustion Ash From Hazardous Waste Regulation Under RCRA Section 3001(i) (Sept. 18, 1992).

14. Environmental Defense Fund v. City of Chicago, 948 F.2d at 345, 22 ELR at 20125, aff'd on remand, 985 F.2d at 303, 23 ELR at 20690; Environmental Defense Fund v. Wheelabrator Technologies, Inc., 931 F.2d 211, 21 ELR 20845 (2d Cir. 1991).

15. Wheelabrator Technologies, Inc., 931 F.2d at 211, 21 ELR at 20845.

16. Environmental Defense Fund, 985 F.2d at 303, 23 ELR at 20690.

17. 467 U.S. 837, 14 ELR 20507 (1984).

18. Environmental Defense Fund, 985 F.2d at 304, 23 ELR at 20691.

19. City of Chicago, 114 S. Ct. at 1591, 24 ELR at 20811.

20. Id. at 1592, 24 ELR at 20811-12.

21. The Court said that the exemption had some effect even under its interpretation. In particular, because the exemption for household waste was regulatory, not statutory, § 3001(i) codified an exemption for TSDFs that could otherwise have been removed by EPA. See id. at 1591, 1593, 24 ELR at 20811, 20812. As an interpretation of congressional intent, this lacks persuasive power. It embodies an assumption that Congress focused on one small corner of the household waste issue determined to avoid any impact on WTE facilities that might result from a hypothetical regulatory change that EPA had no intention of making.

22. Id. at 1595-97, 24 ELR at 20813-14 (Stevens, J., dissenting).

23. E.g., 42 U.S.C. § 6924(g)(5), ELR STAT. RCRA § 3004(g)(5).

24. 59 Fed. Reg. at 29375-76.

25. 42 U.S.C. § 6924(g)(4), ELR STAT. RCRA § 3004(g)(4).

26. 59 Fed. Reg. at 29374-75.

27. This concern may be purely theoretical, since it is difficult to imagine EPA seeking -- or a court awarding -- sanctions under such circumstances.

28. If, however, the waste is "actively managed" after it is re-classified as hazardous waste, it must then be treated, stored, or disposed of in compliance with RCRA Subtitle C. See Final Rule on Mining Waste Exclusion, 54 Fed. Reg. 51394, 51443-44 (Dec. 21, 1988). The view that actively managed waste is subject to RCRA was upheld by the D.C. Circuit. Chemical Waste Management, Inc. v. U.S. Environmental Protection Agency, 869 F.2d 1526, 19 ELR 20641 (D.C. Cir. 1989). While this rule relieves some of the pressure on facilities that accepted ash by releasing them from liability so long as they do not actively manage the waste, EPA has expansive views on when a waste is undergoing active management. See, e.g., Final Rule on Listing Petroleum Refinery Sludge, 55 Fed. Reg. 46354, 46383 (Nov. 2, 1990).

29. 59 Fed. Reg. at 29375.

30. In formal terms, EPA believes that § 3004(g) is ambiguous on the issue of wastes brought into the RCRA system through reinterpretation of the statute, and that this gives the Agency discretion to apply it in these circumstances. See id.

31. Berenyi & Gould, supra note 5, at 51 (171 WTE facilities); U.S. EPA, CHARACTERIZATION OF MUNICIPAL SOLID WASTE IN THE UNITED STATES: 1992 UPDATE (1992) (existing facilities burn 17 percent of all municipal solid waste) [hereinafter 1992 UPDATE].

32. Telephone Interview with Andy Teplitzky, Chief, Residuals Management Section, Office of Solid Waste, EPA (May 27, 1994). EPA is developing an estimate of the costs of testing for lead and cadmium alone.

33. See infra notes 43-45 and accompanying text.

34. See supra note 25 and accompanying text.

35. The figure for transportation costs is an EPA estimate for transporting hazardous waste 300 miles. Telephone Interview with Andy Teplitzky, supra note 32. The $ 158 per ton for treatment and disposal is an average cost as of 1993; the range was $ 100 to $ 200 per ton. For disposal without stabilization, the average cost is $ 96 and the range is $ 50 to $ 160 per ton. EPA has not yet determined whether municipal solid waste combustion ash will require stabilization before disposal. EI Guide to Hazardous Waste Landfills in Canada and the United States (Environmental Information, Ltd., Minneapolis, MN), May 1994. These are nationwide averages, though, and costs in the Northeast, where most WTE incinerators are located, are higher than elsewhere in the United States. See infra note 49.

36. 59 Fed. Reg. at 29373. In City of Chicago, the city burned 350,000 tons of solid waste and produced 110,000 to 140,000 tons of ash annually. City of Chicago v. Environmental Defense Fund, 114 S. Ct. at 1589, 24 ELR at 20810. As of 1993, it is estimated that 142 facilities were burning 30 million tons of trash and producing 8.5 million tons of ash. Jeff Bailey, Up in Smoke: Fading Garbage Crisis Leaves Incinerators Competing for Trash, WALL ST. J., Aug. 11, 1993, at A1, A4.

37. Berenyi & Gould, supra note 5, at 51, 56.

38. See UJIHARA & GOUGH, supra note 9, at 3-4. These results were achieved using the Extraction Procedure test, the predecessor to the TCLP now used by EPA. It is unlikely that the TCLP will produce results that are "better" from the industry's perspective.

39. Id.

40. 40 C.F.R. § 268.3 (1993).

41. EPA has written that "the facility may sample and test combined fly ash and bottom ash if they are mixed within the municipal combustion unit." Memorandum from Steven A. Herman, Assistant Administrator for Enforcement, EPA, & Elliott P. Laws, Assistant Administrator for Solid Waste and Emergency Response, EPA, to Regional Administrators (Regions I-X), EPA, EPA/530-F-94-021, Implementation Strategy of U.S. Supreme Court Decision in City of Chicago v. EDF, No. 92-1639 (__ U.S. __, May 2, 1994) for Municipal Solid Waste Combustion Ash 3 (May 27, 1994) (available from ELR DOCUMENT SERVICE AD-214). The meaning of "unit" is ambiguous, and the statement does not mean that all facilities can combine the two ash streams. Combination is legitimate only if it occurs as a natural part of the combustion and disposal process. The validity of combining the two streams will be determined on a case-by-case basis. A facility may not, for example, remove fly ash and bottom ash separately, take them to a different building, and then combine them for testing. Telephone Interview with Andy Teplitzky, Chief, Residuals Management Section, Office of Solid Waste, EPA (July 12, 1994).

42. The lead content of municipal solid waste leaps every Christmas because of fancy inks used on wrapping paper; and cadmium comes from the small batteries that are ubiquitous. Batteries, mostly from automobiles, contribute 65 percent of all lead in municipal solid waste. Other sources of lead in municipal solid waste are consumer electronics (27 percent); glass and ceramics (4 percent); plastics (2 percent); soldered cans, pigments, and such products as lead foil wine bottle wrappers, used oil, rubber products, and light bulbs, each category contributing less than 1 percent. Not many automobile batteries or electronic boards end up in municipal solid waste ash, and it is not likely that even careful source separation can eliminate enough sources of lead to ensure a safe margin of compliance. Cadmium enters municipal solid waste from household batteries (50 percent), plastics (28 percent), consumer electronics (9 percent), appliances (5 percent), pigments (4 percent), glass and ceramics, heating pads, and used oil (in small quantities). Source separation is also not feasible for cadmium. EPA, EPA/530-SW-89-015C, CHARACTERIZATION OF PRODUCTS CONTAINING LEAD AND CADMIUM IN MUNICIPAL SOLID WASTE IN THE UNITED STATES, 1970 to 2000 (EXECUTIVE SUMMARY) passim (1989).

43. EPA has prepared a draft document in response to the City of Chicago decision that provides a basic education on testing. OFFICE OF SOLID WASTE, EPA, SAMPLING AND ANALYSIS OF MUNICIPAL REFUSE INCINERATOR ASH (May 20, 1994) (draft guidance) (available from ELR DOCUMENT SERVICE AD-208) [hereinafter SAMPLING AND ANALYSIS]. It "represents the minimum that the Agency considers as being appropriate" and does not relieve the operator of liability for error. Id. at 1.

44. Any random sample is required to pass the TCLP test. See, e.g., Final Rule on Land Disposal Restrictions for Third Third Scheduled Wastes, 55 Fed. Reg. 22520, 22539 (June 1, 1990).

45. The ash produced from burning municipal solid waste equals approximately 25 percent by weight of the waste that is burned, although technologies and estimates vary. 59 Fed. Reg. at 29373. In 1995, 35.4 million tons of municipal solid waste are expected to be burned, resulting in 8.9 million tons of ash that will now require testing and, potentially, disposal as hazardous waste. See 1992 UPDATE, supra note 31.

46. As of 1990, only 7 percent of incinerated municipal solid waste was burned without energy recovery (2.2 million tons out of 31.7 million tons burned). 1992 UPDATE, supra note 31.

47. Jonathan V. L. Kiser & B. Kent Burton, Energy From Municipal Waste: Picking Up Where Recycling Leaves Off, WASTE AGE, Nov. 1992, at 39, 42-44.

48. Berenyi & Gould, supra note 5, at 51, 56.

49. Incinerators generally charge an average of $ 56 per ton; new facilities may charge up to $ 70 per ton. As of 1992, tipping fees in the Northeast averaged $ 65.83 per ton. In contrast, national tipping fees averaged only $ 31.20 per ton. The lowest tipping fees were in the West Central United States, which had an average of $ 12.62 per ton. See DeLong, supra note 4, at 7.

50. 114 S. Ct. 1677, 24 ELR 20815 (1994). The flow control law in this case was typical. The town contracted with a firm to operate a municipal recovery facility at which recyclable materials were separated and the balance of the trash sent out for disposal in a landfill. The contractor charged $ 81 per ton and the town guaranteed a volume of 120,000 tons per year. The town then passed an ordinance providing that all trash generated locally must go to the municipal recovery facility at the $ 81 per ton charge.

51. See DeLong, supra note 4, at 3-10.

52. The replacement value of the present incineration capacity is about $ 17 billion. See DeLong, supra note 4, at 10. City of Chicago has jeopardized an estimated $ 10 billion in municipal bonds that were used to finance the incinerators. Bailey, supra note 36, at A2.

53. EPA, EPA Implements Supreme Court Decision on Municipal Ash (May 24, 1994) (press release).

54. SAMPLING AND ANALYSIS, supra note 43.

55. 59 Fed. Reg. at 29372.

56. Id.

57. JUDD H. ALEXANDER, IN DEFENSE OF GARBAGE 164 (1993).

58. SeeKathleen White, Inform Concludes That U.S. Can Learn From Green Dot, WASTE AGE, June 1994, at 90, which estimates that costs of collection and processing are $ 175-200 per ton of recyclable material recovered. The value of an average ton of recyclable materials is about $ 40. DeLong, supra note 4, at 18.

59. C&A Carbone, Inc. v. Town of Clarkstown, 114 S. Ct. 1677, 24 ELR 20815 (1994) (invalidates flow control law that allowed municipality to contract exclusively with one waste disposal facility, such as a recycling plant).

60. John Bartlett & Justin Kaplan eds., Bartlett's Familiar Quotations 82:11 (16th ed. 1992).