Household Ash Issue

Question 1

Household Waste - Hazardous?

Answer 1

• batteries = classic hazardous waste, but most household waste isn’t hazardous
• can’t really label the waste hazardous b/c would be VERY expensive to send to TSDs + you really don’t have massive risks b/c proportion of hazardous waste to normal pretty low

Question 2

Household Waste - Initial Solution

Answer 2

• EPA creates a regulatory exception for household waste in 1980

Question 3

Household Waste and Incinerators

Answer 3

• landfills are scarce, so there’s an incentive to burn ordinary household waste (not hazardous b/c of EPA reg) -> burning means you produce heat (energy) while also bringing the volume of the waste down by 90-93%
• BUT households start to recycle -> not really enough waste to fuel this industry -> want to mix the household waste w/ nonhazardous commercial waste
• this would mean though the waste you’re dealing with is no longer exclusively household waste (so tech not covered by the EPA reg) AND it has the household haz waste in it -> is this hazardous waste?

Question 4

RCRA Subtitle C 3001(a)(i)

Answer 4

• part of the 1984 amendments - Clarification of Household Waste Exclusion
• a resource recovery facility recovering energy from mass burning of municipal solid waste doesn’t count as treating, storing, disposing of, or otherwise managing haz wastes if:
  
  • receives and burns only household waste and solid non-haz commercial waste, AND
  • doesn’t accept haz wastes listed in this section

Question 5

City of Chicago v. EDF - Facts

Answer 5

• deals with the household waste issue
• EDF tests the ash from incinerators -> fails toxicity test -> argues haz waste + should be subject to regulation
• wins against City of Chicago in 7th Circuit + SCOTUS grants cert.
• both sides says EPA supports them - EPA files an amicus brief + points to the Reilly Memo (created the day before cause EPA was trying to get deference) -> supports Chicago

Question 6

Why does EPA support Chicago in the litigation?

Answer 6

• says the ash is exempt from hazardous waste for both legal and policy reasons - the concern is if you say the ash is hazardous, municipal waste won’t be burnt + you’ll wind up with an even worse env situation

Question 7

City of Chicago - Chicago’s Arguments

Answer 7

• plain meaning of the text: otherwise managing + disposal both fall under the exception, + ash only waste they’re disposing
• Chevron II - solid argument it’s ambiguous (Circuit conflict) and if it’s ambiguous they win cause EPA memo
• Legislative history - Senate report extends exclusion to “generating” + purpose to expand prior exclusion, not limit it

Question 8

City of Chicago - Chicago’s Policy and Purpose Arguments

Answer 8

• if you say the ash is hazardous waste, all the household waste will go to Subchapter D landfills (where all the unregulated hazardous waste goes) and you won’t get the benefit of volume reduction

Question 9

City of Chicago - EDF’s Challenges

Answer 9

• must win on plain meaning
• adverse legislative history -> argues generate never made it into the statute
• environmental policy/purpose
• emphasizes different regs for generators vs. TSD facilities -> says policy-wise, won’t actually change the economics of incinerators

Question 10

EDF Policy Args on the Ash

Answer 10

Important not to exempt the ash:
- could be dangerous in a Subchapter D facility
- dangerous if allowed for uses not barred for hazardous wastes

Can reduce the costs of ash disposal:
- keep hazardous fly ash (10%) from bottom ash
- reduce household disposal of batteries (deposit/refund)

TSD exemption hugely advantageous to facilities - won’t actually change their economics too much to make them generators

Question 11

City of Chicago - Decision

Answer 11

• 1994
• Scalia writes it
• basically incinerators wind up being regulated as generators b/c they’re generating the hazardous ash through the incineration process (but they are statutorily exempted from regulation as TSD facilities b/c they’re only accepting nonhazardous waste)