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#403 - EDF Proposes Incinerator Ash Dumps, 17-Aug-1994

The waste industry and the Environmental Defense Fund (EDF) have held a
series of private meetings since June to develop a proposal to change
federal law, to remove the term "hazardous" from all ash produced by
municipal solid waste (msw) incinerators. The proposal would require
that all msw ash be placed in special dumps (called "monofills")
designated for that purpose. The 13-page EDF-industry proposal was
released publicly without fanfare August 12.

The two largest corporations in the msw business are Ogden Martin, and
Wheelabrator, a subsidiary of WMX Technologies (formerly Waste
Management, Inc.). EDF is an environmental organization that in recent
years has adopted a strategy of making alliances with corporate
polluters in hopes of modifying their behavior.

The few grass-roots activists who have heard of the EDF-industry ash
proposal expressed outrage at both the substance of the proposal, and
the secretive process by which it was drawn up. Paul Connett, co-editor
of WASTE NOT and co-director of Work on Waste USA said, "We see this is
as a complete sabotage of all the grass-roots efforts that have gone
into defeating 280 incinerators since 1985. [EDF has] come in and
rescued this technology." Judi Enck of the New York Public Interest
Research Group (NYPIRG) said, "If I was an incinerator company, I would
just jump at the opportunity to get this legislation because it makes
the picture much rosier for them." We were unable to locate any grass-
roots activists who favored the EDF-industry approach. EDF's executive
director, Fred Krupp, said he was "bewildered" by the "assertion that
EDF's position has been formulated without any discussion with other
groups that work on this issue," citing phone discussions with NYPIRG,
U.S. Public Interest Research Group (US PIRG), Sierra Club, and others.
Both NYPIRG and US PIRG oppose the EDF-industry proposal. Sierra Club
has not yet taken a position on the proposal.

The 160 msw incinerators operating in the U.S. produce about 8 million
tons of ash each year containing, by rough estimate, some 18,000 tons
of lead, plus lesser quantities of other potent toxins such as cadmium,
arsenic and dioxin.[1]

The joint EDF-industry proposal, titled "The Ash Management and
Utilization Act of 1994," covers ash from municipal solid waste
incinerators, not hazardous waste incinerators. The incinerator
industry hopes Congress will pass the law this term, which would
require extraordinarily rapid action on capitol hill. The proposal
would amend RCRA (the Resource Conservation and Recovery Act), the
nation's basic waste-management law. The EDF-industry proposal has the
following features:

** Msw ash would not have to be tested for its toxicity;

** No msw ash would ever be designated a "hazardous waste" but would
all be called "special waste;"

** All ash would have to be put into a double-lined dump designed
specifically for ash (termed a "monofill" because only one substance --
ash --could go into it); industry would have to monitor such dumps for
30 years, after which the taxpaying public would assume responsibility
for monitoring, maintenance, and eventually cleanup.

** EPA [U.S. Environmental Protection Agency] would be required to
issue a finding in 36 months that ash is, or isn't, suitable as a base
for road building. Other commercial uses of ash would be regulated by
EPA.

** Within 7 1/2 years, the msw industry would be required to place all
its ash in monofill dumps. Until monofilling began, the industry would
be exempt from liability for any problems its ash might cause.

The joint EDF-industry proposal follows on the heels of an EDF victory
in the U.S. Supreme Court in early May. The Court ruled May 2 that msw
ash is not exempt from RCRA, the nation's hazardous waste law, which
requires that wastes be tested for toxicity; wastes that flunk the test
must be placed in officially-designated hazardous waste dumps. The
incineration industry fears that some of its ash will have to be
designated a hazardous waste --a severe psychological deterrent to
expanding the industry, as well as a considerable expense. Hazardous
waste can cost up to $300 per ton for burial at a legally-designated
hazardous waste dump. Judi Enck of the New York Public Interest
Research Group estimates that ash can be placed in an "ash monofill"
for only $70 or $80 per ton.

For its part, EDF fears that most ash will NOT have to be designated
hazardous waste and will be released directly into the environment.

May 24th, EPA held a briefing for the incinerator industry, describing
how EPA will react to the Supreme Court decision. EPA said that within
a few months they plan to issue rules that:

** Allow incinerator operators to mix fly ash and bottom ash. Bottom
ash makes up 90% of the ash generated by an incinerator; fly ash is
10%. The bottom ash usually contains about 2000 parts per million (ppm)
of lead; the lead concentration in fly ash is usually at least twice
that. EPA's plan would allow dilution of the more toxic fly ash with
less toxic bottom ash, to diminish the overall concentration of toxins
in the combined ash. This runs contrary to most other EPA rules, which
do not allow dilution as a solution to pollution.

Ash containing 2000 ppm lead is contaminated at a level more than 5
times as high as the "level of concern" EPA recently set for lead in
soil.

** EPA will required msw ash to be tested only 4 times each year. The
average incinerator produces 137 tons of ash per day. Sampling all this
ash only 4 times per year is guaranteed, mathematically, not to give a
very reliable (consistent) estimate of the actual concentration of
pollutants in the ash. Findings that are not reliable cannot,
mathematically, be valid (accurate). So EPA's proposal is guaranteed
not to give a true picture of the contaminants in ash.

** EPA will test ash by the Toxicity Characteristic Leaching Procedure
(TCLP). This test does not identify the actual pollutants contained in
the ash; it only identifies those pollutants that leach out under
certain specific conditions. Since, sooner or later, all of the ash
will be released into the environment (even ash that is monofilled), it
is the total pollutant content that will affect communities, not merely
what leaches out under TCLP conditions. Therefore the TCLP test gives a
misleading estimate of the ash hazard.

** EPA will allow --and may even encourage --ash producers to "treat"
their ash before subjecting it to the TCLP test, to reduce its chances
of flunking the test. For example, by treating ash with phosphoric
acid, the toxic lead can be converted to lead phosphate, which will not
leach out in a TCLP test. This would allow the ash to pass the TCLP
test without diminishing the long-term hazard of the toxic metals in
the ash.

A memo from EDF to several grass-roots leaders dated August 11 refers
to ash monofills as "state of the art" technology for protecting the
environment against ash. But in a phone call August 11, EDF senior
scientist Richard Denison said that communities would only be "a little
better protected" by ash monofills than by the present system. He
stressed that the big benefit would be control of "ash utilization" --
schemes to mix ash into concrete, or put it beneath road surfaces. Ash
utilization is presently unregulated.

Grass-roots activists say the EDF-industry proposal removes a major
point of public debate about msw incineration. Paul Connett said, "When
the ash issue is examined it underlines the total absurdity of spending
billions of dollars destroying resources that we should be sharing with
the future. This is where the craziness of this whole [incinerator
business] breaks down. You give them a convenient toilet and there's no
[longer any] question of absurdity. We're just going to have ash
monofills all over the place."

EDF's Karen Florini, an attorney and lobbyist on capitol hill,
expressed surprise that grass-roots incinerator fighters might be
concerned about the proposed legislation. "We didn't intentionally not
check with [grass-roots activists] about this stuff, it's that we
didn't realize that issues relating to federal legislation on this
would be of profound concern to you," she said.

The waste industry has demonstrated profound concern for these issues.
According to the Center for Responsive Politics in Washington, D.C.,
during the period 1991 to 1994, Ogden, Foster Wheeler, and various
subsidiaries of WMX Technologies contributed $825,695 to election
campaigns of certain members of Congress. Particularly favored by waste
industry contributions were Sen. Frank Lautenburg (D-N.J.) and Rep. Al
Swift (D.-Wash.) who head the two committees that will review the EDF-
industry ash bill.

Fred Krupp said EDF had 3 goals in proposing the legislation:

(1) Immediately limit ash utilization until and unless federal
regulations are developed;

(2) Immediately replace the flawed TCLP-test-based system with one that
imposes baseline requirements on all ash;

(3) Phase in, as quickly as possible, state-of-the-art disposal
requirements for ALL ash.

EDF's Richard Denison said, "The intent is to try to deal with an
existing problem, which we see as massive and which we see as needing
to be addressed."

Judi Enck of NYPIRG said she appreciates all the good scientific work
EDF has done on incinerator ash over the years. However, she thinks
they have made a profound error in their proposed ash legislation: "Ash
won't be a problem any more if the bill passes. The regulators, the
industry, the politicians are going to dismiss any legitimate concerns
about toxicity in ash. They're going to say the EDF agreed that we just
need to put this in monofills. What does this mean for our day-to-day
organizing work? It means that we're going to get monofills sited with
the blessing of a national environmental group and the whole
opportunity to fight with the regulators about ash toxicity, the [TCLP]
test, the [phosphoric acid] treatment, the mixing, it will all vanish.
And there will be a legitimate way to dispose of huge quantities of ash
which you know and I know a good percentage of which is really a
hazardous waste and in 5 or 10 or 20 years will probably be a Superfund
site."

To tell Congress what you think about the EDF-industry ash bill
contact: Honorable Al Swift, U.S. House of Representatives, 1502
Longworth House Office Building, Washington, DC 20515. Phone: (202)
225-2605; fax: (202) 225-2608.

To give EDF your opinion of its ash bill, write or phone Fred Krupp,
executive director, 275 Park Avenue South, New York, NY 10010; phone
(212) 505-2100; fax: (212) 505-2375.

To contact opponents of the EDF-industry ash bill, call Judi Enck at
NYPIRG: (518) 436-0876.

--Peter Montague

=====

[1] Assuming the 8 million tons are 90% bottom ash containing 2000 ppm
lead and 10% fly ash containing 4000 ppm lead.

Descriptor terms: waste disposal industry; edf; ash monofills;
landfilling; dumping; ogden martin; wmx; wheelabrator; lead; cadmium;
arsenic dioxin; rcra; epa; regulations; incineration; ash; tclp;
testing; monitoring; center for responsive politics; frank lautenburg;
al swift; congress; fred krupp; paul connett; judi enck; richard
denison; karen florini;