ELR Citation: ELR 20375
No(s). 88 C 769 (N.D. Ill. Nov 29, 1989)

The court rules that §3001(i) of the Resource Conservation and Recovery Act (RCRA) excludes ash produced by waste-to-energy resource recovery facilities from regulation as a hazardous waste under RCRA Subtitle C, as long as the particular facility does not accept hazardous waste for incineration and ensures that no hazardous waste is accepted. Congress added §3001(i) in 1984 to expand the household waste exclusion to include resource recovery facilities that also burn nonhazardous commercial or industrial solid waste, but did not renounce the Environmental Protection Agency's (EPA's) 1980 interpretation that ash from household waste is excluded from hazardous waste regulation. This is persuasive evidence that Congress intended to exclude ash from Subtitle C regulation. The court's interpretation is consistent with RCRA's goal of encouraging resource recovery facilities and with the legislative history. EPA's 1985 interpretation classifying ash as hazardous if it exhibits characteristics of toxicity is not entitled to deference, since EPA's interpretation has been inconsistent and rests on a questionable reading of the statute. The court holds that factual issues remain concerning whether the Chicago Northwest Incinerator has appropriate procedures to ensure that hazardous waste is not accepted and whether the facility accepts hazardous waste.

Counsel for Plaintiffs
Michael E. Herz
Environmental Defense Fund, Inc.
257 Park Ave. S., New York NY 10010
(212) 686-4191

Counsel for Defendants
Nancy Marren
Law Department, City of Chicago
121 N. Lasalle, Rm. 511, Chicago IL 60602
(312) 744-6900