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November 29, 1989

CITY OF CHICAGO and RICHARD M. DALEY, Mayor of the City of Chicago,1 Defendants

James B. Moran, United States District Judge.

The opinion of the court was delivered by: MORAN


 Plaintiffs Environmental Defense Fund, Inc. (EDF) and Citizens for a Better Environment (CBE) bring this action against the City of Chicago and its Mayor, seeking injunctive relief and civil penalties under Section 7002 of the Resource Conservation and Recovery Act (RCRA). Plaintiffs allege that the City has violated certain provisions of RCRA, 42 U.S.C. § 6901 et seq., by generating hazardous waste and not complying with the hazardous waste requirements under RCRA, subtitle C. 42 U.S.C. §§ 6921-6939(b). We have before us plaintiffs' and defendants' cross-motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, both motions are denied and plaintiffs are granted leave for additional discovery.


 The City is the owner and operator of a facility known as the Chicago Northwest Incinerator, located at 700 N. Kilbourn Avenue in Chicago. This was one of the first modern waste-to-energy resource recovery facilities in the United States and is the only such facility in Illinois (aff. of John Ellis, plant manager, Dept. of Streets and Sanitation, Chicago, at para. 3). Resource recovery facilities use highly engineered and controlled incineration technology to process solid wastes, reducing their volume and recovering usable energy in the form of steam or electricity (aff. of Mosi Kitwana, Deputy Commissioner of Sanitation, Chicago, at para. 10). The Northwest facility receives 200 to 250 truckloads of refuse each weekday and processes some 350,000 tons of solid municipal waste annually (Ellis aff. para. 7). According to Mr. Kitwana, at least 99% of the waste received at the facility consists of household waste (Kitwana aff. para. 14). The remainder of the waste consists of commercial waste -- primarily paper and foodstuffs brought into the United States by international flights arriving at O'Hare Airport -- and small quantities of contraband seized by law enforcement officials (Kitwana aff. para. 14). The City contends that this waste, and the small amounts of commercial waste collected in Chicago, do not contain hazardous materials.

 The facility is supposed to maintain rigid inspection procedures. Household waste shipments are allegedly spot-checked to ensure that they do not contain hazardous wastes and commercial shipments carefully screened -- all to prevent the acceptance of hazardous wastes (Kitwana aff. para. 15). Commercial waste shipments must also be approved by the Bureau of Sanitation prior to acceptance. Finally, all commercial waste is supposed to be physically examined and any hazardous materials found are to be sent back to the generator for proper disposal (Kitwana aff. para. 15).

 Once the waste has been delivered, and inspected for hazardous materials, it is processed through the facility and reduced to an ash residue. The status of this ash is what is at issue in this matter. Plaintiffs allege that the ash is hazardous waste *fn2" and that the City has failed to comply with the cradle-to-grave regulatory system that governs storage, transport, disposal, and other handling of hazardous wastes. See 42 U.S.C. §§ 6921 et seq ; 40 CFR §§ 262.10 et seq.

 The City contends that the ash remaining after incineration at the Northwest facility is from a non-hazardous waste stream and thus exempt from hazardous waste regulations. It moves for summary judgment alleging that there are no genuine issues of material fact in dispute, and that 42 U.S.C. § 6921(i) and 49 CFR § 261.4(b)(1) specifically exclude all waste management activities of resource recovery facilities that receive household waste and non-hazardous commercial waste. On cross-motion, plaintiffs contend that the generation of toxic ash is not exempt from hazardous waste regulation and that only certain activities of resource recovery facilities are exempt.


 The central issue in this action is whether the ash residue remaining after incineration is a hazardous waste under subtitle C, or only a solid waste regulated under subtitle D. Statutory ambiguity has caused a great deal of uncertainty with respect to how this ash should be regulated. Plaintiffs contend that toxic ash generated by resource recovery facilities is hazardous and subject to hazardous waste regulation. Defendants, on the other hand, contend that ash remaining after the incineration of household and non-hazardous commercial waste is exempt from subtitle C regulation. We agree.

 The Resource Conservation and Recovery Act was enacted by Congress to address our growing national solid waste crisis, to promote the protection of health and the environment, and to conserve valuable material and energy resources. 42 U.S.C. § 6902. The RCRA classifies wastes as either hazardous (regulated under C, 42 U.S.C. §§ 6921-6939(b)) or as non-hazardous (regulated under D, 42 U.S.C. §§ 6941-6949(a)). Subtitle C imposes rigorous safeguards and procedures on hazardous waste management, while D essentially forbids the disposal of solid waste in open dumps and provides significantly less regulation than C. When Congress first enacted the RCRA in 1976 it did not initially identify which wastes were subject to hazardous waste regulation. Rather, it required the EPA to develop and promulgate criteria for identifying hazardous wastes. 42 U.S.C. § 6921(a). In 1980 the EPA issued regulations identifying and listing hazardous wastes. Included in these regulations was a provision known as the "household waste exclusion." 45 Fed.Reg. 33,120 (May 19, 1980). That provision exempted the entire household waste stream, including the ash residue from household waste, from hazardous waste regulation and provided, in pertinent part, as follows:

(b) Solid wastes which are not hazardous wastes. The following solid wastes are not hazardous wastes:
(1) Household waste, including household waste that has been collected, transported, stored, treated, disposed, recovered (e.g., refuse-derived fuel) or reused. "Household waste" means any waste material (including garbage, trash and sanitary wastes in septic tanks) derived from ...

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