High Court’s Trash Ruling a Blow to Cities : Law: Ash from incinerators may be hazardous, needing special landfills, justices say. The impact in California is not seen as especially severe.

In a costly setback for cities that burn their trash, the Supreme Court ruled Monday that ash left by garbage incinerators may be hazardous waste and as such requires disposal in expensive special landfills.

Until Monday, city officials and the Environmental Protection Agency had maintained that federal law exempted municipal incinerators from requirements governing hazardous waste.

But in a strict reading of the law, the high court said the exemption set by Congress applies only to trash that goes into an incinerator, not to the ash that comes out.

The ruling will have its greatest impact in such cities as Chicago and New York, which dispose of much of their garbage through incineration. Trash-burning plants have not been as popular in California because of the state’s problem with air pollution. However, the decision may affect incinerators in Long Beach and Commerce, state officials said.

In 1992, incinerators burned 34 million tons of municipal trash, or about 17% of the nation’s solid waste. Advocates of the giant trash burners say that they save space in landfills while creating energy--the equivalent of 31 million barrels of oil per year. Incinerators reduce trash by 90%, leaving the remaining 10% as ash for disposal.

The ash is typically dumped in regular landfills. But critics argue that it may be toxic and hazardous because it includes metal from cans, batteries and other discarded items, and should instead be disposed of in much safer, and more costly, hazardous waste dumps.

Under the court’s ruling, operators of incinerators will be required to test their ash. If it is found to be high in metals, such as lead and cadmium, the material will have to be treated as hazardous waste. City officials say it costs an average of $452 per ton to dump hazardous waste, more than 10 times the $42-per-ton average cost for dumping in a landfill.

“This creates a real disincentive for the use of incinerators,” said David B. Hird, a Washington attorney representing the National League of Cities, which joined in opposing the suit.

But environmentalists hailed the ruling and said that it will encourage conservation and recycling.

Other environmentalists said municipal operators can comply with the law by screening out heavy metal items before they enter the incinerator.

As a legal matter, Monday’s ruling illustrates the strict literalist approach championed by Justice Antonin Scalia.

Usually, the conservative court would be thought more likely to side with the cities and against environmentalists. But Scalia has insisted that the court follow the wording of the law, regardless of who wins or loses.

Congress in 1984 said the hazardous waste rules do not apply to a municipal incinerator that is “treating, storing, disposing of or otherwise managing hazardous wastes.”

But the court was asked what should be done with facilities that also “generate” waste of their own in the form of ash.

In the ruling in the case (Chicago vs. Environmental Defense Fund, 92-1639), Scalia wrote that, because the law “significantly omits the word ‘generating’ . . . we think it follows from the carefully constructed text . . . that its generation of toxic ash” is not exempted from the hazardous waste rules.

His opinion said nothing about the possible broad impact of the ruling and it deliberately ignores congressional statements on the House and Senate floor or in committee reports suggesting that municipal incinerators were intended to be shielded from the hazardous waste rules. Repeatedly, Scalia has said that he will only follow the actual words of the law and will not be guided by lawmakers’ intent.

Also on Monday, the court let stand a state court ruling that bars the University of Colorado from forcing its student athletes to undergo regular, unannounced drug tests (University of Colorado vs. Derdeyn, 93-1410). The Colorado Supreme Court called these tests an unreasonable search. By contrast, the California Supreme Court has upheld such drug tests.