Trash, Ash and the Phoenix: A Fifth Anniversary Review of the Supreme Court’s City of Chicago Waste-to-Energy Combustion Ash Decision

Abstract

In 1994, the U.S. Supreme Court held that ash generated by waste-to-energy (WTE) facilities was not exempt from Subtitle C hazardous waste management regulations under the Resource Conservation and Recovery Act (RCRA). As a result of City of Chicago v. Environmental Defense Fund, Inc., WTE installations are required to test their combustion ash and determine whether it is hazardous. The WTE industry and the municipalities utilizing WTE technologies initially feared that if significant amounts of their ash tested hazardous, the costs and liabilities associated with RCRA Subtitle C hazardous waste management requirements would pose a serious threat to the continued viability of the WTE concept. In this article, the author presents a review of the WTE industry in the five years following the decision, and finds that the specter of the decline of WTE has not materialized.