ELR Citation: ELR 20845
No(s). 90-7437 (2d Cir. Apr 24, 1991)

The court holds that the 1990 Clean Air Act amendments do not moot a suit alleging that residue ash produced by waste-to-energy facilities should be regulated as a hazardous waste under the Resource Conservation and Recovery Act (RCRA). Section 306 of the 1990 Clean Air Act amendments provides that ash from incineration units burning municipal waste shall not be regulated under RCRA for two years. Plaintiff environmental organization brought suit against defendant claiming defendant's residue ash is a hazardous waste that must be disposed of in accordance with the provisions of Subtitle C of RCRA. Plaintiff brought this appeal after the trial court granted summary judgment for defendant holding that RCRA §3001(i) grants an exclusion from the hazardous waste regulations for residue ash that is produced by incinerating solid municipal waste.

Noting that the 1990 Clean Air Act amendments were enacted after the district court's decision, the court holds that Congress did not intend to erect a bar to the enforcement of preexisting environmental statutes and regulations. Moreover, the legislative history of the 1990 amendments clearly provides that Congress expressly decided against giving an opinion about this litigation. By imposing a two-year moratorium on any new regulatory activity concerning incinerator ash, Congress simply may have desired to maintain the status quo pending judicial resolution of this issue. Turning to the merits, the court holds that RCRA §3001(i) excludes incinerator ash from regulation as a hazardous waste under RCRA, as long as the particular facility does not accept hazardous waste for incineration and has sufficient controls to ensure that unauthorized hazardous wastes would not be delivered to the resource recovery facility for disposal. Defendant had such controls in place and the district court properly granted defendant summary judgment.

[The district court opinion is published at 20 ELR 20326.]

Counsel for Appellant
R. Edward Wilhoite Jr.
Jenner & Block
One IBM Plaza, Chicago IL 60611
(312) 222-9350

Counsel for Appellees
John G. Koeltl
Debevoise & Plimpton
875 Third Ave., New York NY 10022
(212) 909-6000

Meskill, J. (before Miner and Altimari, JJ.):