Trash ash must comply with hazardous waste rules

May 03, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun Sun staff writer Timothy B. Wheeler contributed to this article.

WASHINGTON -- The Supreme Court, in a major setback for cities that burn ordinary trash collected from residents, ruled yesterday that toxic ash from incinerators cannot be buried in regular landfills.

If the ash is tested at a toxic level high enough to make it dangerous, the court decided by a 7-2 vote, it must be handled with the expensive care that the law requires for hazardous waste. That includes cleaning up after any escape of the poisons.

Although the ruling dealt only with an incinerator operated by Chicago, the two dissenting justices said the outcome may affect more than 150 other waste-to-energy plants across the country. The ruling could affect three incinerators in the Baltimore area that burn municipal trash and put the ash in landfills.

Under a 1976 federal law, strict controls are set on the handling, dumping and storing of hazardous wastes. Although Congress said that law would not apply to ordinary trash, which the Environmental Protection Agency treats as nonhazardous, the court declared that the exemption does not extend fully to toxic ash that results from burning ordinary trash.

When ordinary trash is burned into ash, it sometimes leaves concentrations of toxic material that otherwise would not be noticeable.

Justice Antonin Scalia, who wrote the decision, said that the 1976 law generally relieves the operators of incinerators from the duty of following special safeguards while they gather and burn household waste and nonhazardous wastes from industrial plants.

But, Justice Scalia added, the ash that results from that process can be toxic enough to be treated as hazardous and must get special treatment.

Justices John Paul Stevens and Sandra Day O'Connor dissented.

Baltimore's only sanitary landfill -- at Quarantine Road in Hawkins Point -- receives about 320,000 tons of ash a year from two incinerators that burn commercial and household garbage from the city and surrounding counties. Harford County's landfill takes about 50,000 tons of ash a year from a third waste-to-energy incinerator that burns the county's trash.

Richard Denison, senior scientist for the Environmental Defense Fund, said that ash from the one of the two Baltimore incinerators -- Baltimore Refuse Energy Systems Co. (BRESCO) waste-to-energy incinerator in South Baltimore -- contained enough traces of lead, a toxic metal, to be considered hazardous tests done in the 1980s.

But Richard Collins, chief of solid and hazardous waste for the Maryland Department of the Environment, said that no problems have been found in ash sampled in 1988 from either the BRESCO incinerator or the Harford facility.

Ash from the Pulaski Incinerator in Baltimore has not been tested.

The court's ruling will require regular sampling of incinerator ash, Mr. Collins said, and disposal costs could soar if any batches are found to contain toxic metals that may leach into ground water. Such contaminated ash would have to be taken out-of-state to a licensed hazardous-waste landfill, which typically charges $400 or more a ton, compared with about $50 a ton for dumping ash in local sanitary landfills.

Harassment ruling

Also yesterday, the Supreme Court voted to protect the right of companies that are sued for sexual harassment of workers to offset those complaints by showing that the accuser wore "sexually provocative" clothing to work or spoke in a suggestive way to fellow workers.

The U.S. Judicial Conference, the policy-making arm of the federal courts, had proposed a court rule that would have kept out of federal civil trials -- especially sexual-harassment cases -- most evidence about an accuser's sexual history or personal traits.

Without saying how the nine justices had voted, Chief Justice William H. Rehnquist said "some justices expressed concern" that the change might "encroach on the rights" of those accused of sexual harassment to defend themselves. The court refused to endorse the proposed rule, effectively killing it.

Judith L. Lichtman, president of the Women's Legal Defense Fund, denounced the court's action, saying, "Chief Justice Rehnquist still doesn't get it."

Gotti conviction

The court refused to disturb the racketeering convictions of John Gotti, the boss of the Gambino organized-crime family, and his top lieutenant, Frank LoCascio. Gotti and his "underboss" were convicted of plotting to murder other mob figures. Each was sentenced to life in prison and fined $250,000.

Gotti and LoCascio contended that the jury had been allowed to convict them without clear evidence that the murder plots were designed to help them take over the crime family and to promote its rackets in the New York City area. They said that prosecutors frightened the jury into reaching guilty verdicts.

Fertility doctor

The court declined to review the trial and conviction of a Vienna, Va., fertility doctor for using his own sperm to cause patients to become pregnant. Dr. Cecil B. Jacobson, who ran a reproductive health clinic for 12 years, was convicted of 52 counts of fraud and perjury. He was sentenced to five years in prison, fined $75,000 and ordered to pay $39,205 in restitution to patients. Prosecutors contended that Dr. Jacobson used hormones to induce false pregnancies or used his own sperm to impregnate at least 15 patients.

His unsuccessful appeal contended that his case represented the first attempt by federal prosecutors to extend the federal fraud law to cover the practice of medicine.

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