ELR Citation: ELR 20326
No(s). 88 Civ. 0560 (CSH) (S.D.N.Y. Nov 21, 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. The plain language of §3001(i) does not exclude resource recovery facilities from the regulations governing the generation of hazardous waste, and the ash byproduct is not specifically exempt from regulation. However, the legislative history shows that Congress intended to exclude this ash from regulation under Subtitle C provided that a facility does not accept hazardous waste for incineration and has established mechanisms to ensure that no hazardous waste is accepted. The Environmental Protection Agency's (EPA's) interpretation in its preamble to a 1985 rule implementing §3001(i), which stated that §3001(i) did not wholly exempt ash from regulation as a hazardous waste, directly conflicts with the legislative history and thus is not entitled to deference. Letters written to EPA from senators and a member of the House of Representatives three years after the passage of §3001(i) are entitled to no weight.

The court holds that defendants' resource recovery facility in Peekskill, New York, qualifies for the §3001(i) exclusion. The facility has adequate contractual provisions in place to ensure that hazardous waste is not accepted. The court rules that a resource recovery facility may accept hazardous waste from small quantity generators without subjecting itself to regulation as a hazardous waste disposal facility. Although the facility's procedures do not include an absolute guarantee that hazardous waste will not be accepted, the statute requires only that good-faith precautionary measures be in place. The court orders expedited discovery to determine whether the facility actually accepts hazardous waste. The court holds that the doctrine of primary jurisdiction does not require it to withhold its decision until EPA completes proceedings concerning ash management.

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

Karen Florini, Kathie A. Stein
Environmental Defense Fund, Inc.
1616 P St. NW, Washington DC 20036
(202) 387-3500

Counsel for Defendants
John G. Koetl, Daniel G. Murphy, Terry E. Thornton
Debevoise & Plimpton
875 Third Ave., New York NY 10022
(212) 909-6000

Harold Himmelman, Karl S. Bourdeau, Devid M. Friedland
Beveridge & Diamond
1350 I St. NW, Ste. 700, Washington DC 20005
(202) 789-6000