ELR Citation: ELR 20125
No(s). 90-3060 (7th Cir. Nov 19, 1991)

The court holds that the ash generated by municipal solid waste incinerators is "hazardous waste" that must be disposed of in compliance with Subtitle C of the Resource Conservation and Recovery Act (RCRA) and is not "household waste" exempted by RCRA §3001(i). Environmental organizations alleged that the city of Chicago violated RCRA by unlawfully storing, transporting, disposing of, and handling approximately 140,000 tons of ash produced annually at its northwest facility. As a preliminary matter, the court first holds that §306 of the 1990 Clean Air Act Amendments, which precludes the U.S. Environmental Protection Agency (EPA) from regulating ash under RCRA §3001(i) for two years after the amendments' enactment, does not render the case moot. The court concludes that the amendments do not alter EPA's authority to enforce the existing scheme during the two-year period.

On the merits, the court holds that RCRA §3001(i), which exempts household waste from regulation as "hazardous waste" under the burdensome requirements of RCRA Subtitle C, does not exempt the ash byproduct of incineration from regulation as a hazardous waste. The court concludes that it should not rely on historical legislative materials in construing the application of RCRA §3001(i)'s household waste exclusion to incinerator ash byproduct. EPA explicitly exempted incinerator ash byproduct from RCRA when it promulgated its household waste exclusion in 1980, but Congress' enactment of RCRA §3001(i) in the 1984 Hazardous and Solid Waste Amendments to RCRA was silent on ash byproduct from burning household waste. Further, a 1983 Senate report stated that all waste management activities of resource recovery facilities, including waste ash generation, fall within the household waste exclusion, while later congressional materials stated that RCRA §3001(i) does not exempt incinerator ash byproduct from RCRA Subtitle C. Thus, the court concludes that RCRA §3001(i)'s legislative history is foggy and EPA's waffling statements on its scope deserve no weight at all. Instead, the court determines that the actual words of the statute are the definitive statement of congressional intent. The court then holds that the RCRA §3001(i) household waste exclusion encompasses only treating, storing, disposing, and managing household waste but does not include generating incinerator ash. The court concludes that incinerated household waste—ash—differs in chemical and physical composition from its previous form as plastic, paper, and other rubbish. The court observes that the generation of hundreds of tons of a whole new substance with the characteristics of a hazardous waste should not be exempt from regulation simply because Congress wanted to spare individual households and municipalities from a complicated regulatory scheme if they inadvertently handled hazardous waste. The court notes that a rehearing en banc is not required to consider a conflicting ruling of the Second Circuit in Environmental Defense Fund, Inc. v. Wheelabrator Technologies, 21 ELR 20845.

[The district court's decision is published at 20 ELR 20375.]

Counsel for Plaintiffs-Appellants
R. Edward Wilhoite
77 W. Washington, Ste. 711, Chicago IL 60602
(312) 372-2511

Counsel for Defendants-Appellees
Mardelle Nereim
Office of Corporate Counsel, Appeals Division
180 N. Lasalle, Rm. 500, Chicago IL 60601
(312) 744-6975

Before BAUER, Chief Judge, POSNER, and RIPPLE, Circuit Judges.^*