The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6886 1996 WL 19069 Office of the Attorney General State of Michigan Opinion No. 6886 January 19, 1996 MUNICIPALITIES: Disposal of municipal solid waste incinerator ash in ordinary type II solid waste landfill or in a monofill landfill used exclusively for that purpose Where disposal in a hazardous waste landfill is not required under federal law, municipal solid waste incinerator ash may lawfully be disposed of in an ordinary type II landfill only as provided in the Natural Resources and Environmental Protection Act: (1) on a short term basis in compliance with the requirements of section 11542(2)(e) of that act; or (2) after processing and testing in compliance with the requirements of section 11542(10) of the same statute and the related administrative rules, 1993 AACS, R 299.4420(4)-(7). Honorable William R. Bryant, Jr. State Representative State Capitol Lansing, Michigan 48913 Dear Representative Bryant: You have asked if ash generated from a municipal solid waste incinerator may lawfully be disposed of in an ordinary type II solid waste landfill or must it be disposed of in a monofill landfill used exclusively for that purpose. Under Michigan law, municipal solid waste incinerator ash is regulated as solid waste under the solid waste management provisions (Part 115) of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, MCL 324.11501 et seq; (1) MSA 13A.11501 et seq. Section 11542(1) of the NREPA provides: The generation, transportation, treatment, storage, and disposal of municipal solid waste incinerator ash is regulated under this part as solid waste and is not regulated under part 111. In order to protect human health and the environment from any hazardous components that may be present in municipal solid waste incinerator ash, Part 115 establishes detailed requirements concerning the types of landfills in which those wastes may be disposed. Section 11542 of the NREPA provides a total of six options for this disposal. Under section 11542(2)(a)-(c) of the NREPA, each of the first three disposal options for municipal solid waste incinerator ash are in monofills used exclusively for the disposal of this ash. These provisions prescribe minimum design requirements for each of the three types of ash monofills. The fourth option for disposal of municipal solid waste incinerator ash under section is a landfill with a design approved by the Michigan Department of Environmental Quality that provides environmental protection equivalent to the statutory requirements for ash monofills: (d) A landfill with a design approved by the department that will prevent the migration of any hazardous constituent into the groundwater or surface water at least as effectively as the design requirements of subdivisions (a) to (c). Section 11542(d) does not require that a landfill be a monofill. However, because section 11542(d) requires landfill performance equivalent to the special design requirements for ash monofills, an ordinary type II landfill would not necessarily suffice. The fifth option for disposal of municipal solid waste incinerator ash under Part 115 is set forth in section 11542(2)(e) of the NREPA: (e) A type II landfill, as defined in R 299.4105 of the Michigan administrative code, if all of the following conditions apply: (i) The ash was generated by a municipal solid waste incinerator that is designed to burn at a temperature in excess of 2500 degrees Fahrenheit. (ii) The ash is tested by a laboratory listed on the list compiled by the department under section 11544 and the ash, upon testing, meets the requirements of 40 C.F.R. 261.20 to 261.24. A person seeking to dispose of ash under this subdivision may select an approved laboratory from the list compiled in section 11544 to conduct the test. (iii) The ash from any individual municipal solid waste incinerator is disposed of pursuant to this subdivision for a period not to exceed 60 days. [Emphasis added.] Under this provision, municipal solid waste incinerator ash may be disposed of in an ordinary type II landfill on a short-term basis, subject to all of the enumerated conditions. The final statutory option for disposal of municipal solid waste incinerator ash also involves the use of an ordinary type II landfill, subject to certain conditions. Section 11542(10) of the NREPA provides for the disposal of ash in a type II landfill after it has been processed and tested to minimize threats to human health and the environment: (10) As an alternative to disposal described in subsection (2), the owner or operator of a municipal solid waste incinerator may process municipal solid waste incinerator ash through mechanical or chemical methods, or both, to substantially diminish the toxicity of the ash or its constituents or limit the leachability of the ash or its constituents to minimize threats to human health and the environment, if processing is performed on the site of the municipal solid waste incinerator or at the site of a landfill described in subsection (2), if the process has been approved by the department as provided by rule, and if the ash is tested after processing in accordance with a protocol approved by the department as provided by rule. If municipal solid waste incinerator ash is processed in accordance with the requirements of this subsection and the processed ash satisfies the testing protocol approved by the department as provided by rule, the ash may be disposed of in a type II landfill, as defined by R 299.4105 of the Michigan administrative code, licensed under this part or may be used in any manner approved by the department. If municipal solid waste incinerator ash is processed as provided in this subsection, but does not satisfy the testing protocol approved by the department as provided by rule, the ash shall be disposed of in accordance with subsection (2). [Emphasis added.] The Department of Natural Resources has promulgated administrative rules pertaining to the processing and testing requirements of section 11542(10). 1993 AACS, R 299.4420(4)-(7). Materials attached to your letter raise the related question of whether, notwithstanding the requirements of Michigan law discussed above, federal law authorizes the disposal of municipal solid waste incinerator ash in an ordinary type II landfill. Specifically, those materials refer to and include a September 18, 1992, memorandum issued by the Administrator of the United States Environmental Protection Agency, which concluded that certain municipal incinerator ash was not subject to the hazardous waste disposal requirements set forth under Subtitle C of the Resource Conservation and Recovery Act of 1976, 42 USC 6901, et seq. Subsequent to the issuance of that memorandum, the United States Supreme Court issued its ruling in City of Chicago v Environmental Defense Fund, 511 US _____, 114 S Ct 1588, 128 L Ed 2d 302 (1994), rejecting that conclusion. Consequently, under Environmental Defense Fund, federal law may require that some municipal solid waste incinerator ash be disposed of in a hazardous waste landfill rather than either a monofill or a type II landfill. In those circumstances where federal law does not require disposal of the ash in a hazardous waste landfill, the determination of whether the ash may be disposed of in either a type II facility or a monofill is governed by the requirements in Part 115 of the NREPA as set forth in this opinion. It is my opinion, therefore, that where disposal in a hazardous waste landfill is not required under federal law, municipal solid waste incinerator ash may lawfully be disposed of in an ordinary type II landfill only as provided in the NREPA: (1) on a short term basis in compliance with the requirements of section 11542(2)(e) of the Natural Resources and Environmental Protection Act; or (2) after processing and testing in compliance with the requirements of section 11542(10) of the same statute and the related administrative rules, 1993 AACS, R 299.4420(4)-(7). Frank J. Kelley Attorney General (1)