Why a Cohoes Hazardous Waste Ash Law is Needed
Instead of sending toxic incinerator ash to commercial hazardous waste landfills as required by current federal and state law, Norlite takes toxic fly ash from the incineration of hazardous waste, mixes it with its aggregate product at a ratio of 88% fly ash to 12% aggregate, and sells it as a product Norlite calls “block mix.”
It is bad enough that the Norlite hazardous waste incinerator is pumping air pollution into the atmosphere and our lungs. But Norlite is also damaging our health and environment by selling the block mix for use in road and building construction, as garden and walkway filler, and a multitude of other uses, all over the country. While Norlite argues that the toxics stay embedded in their products, they no longer have legal authority to do this. In addition, road surfaces break down over time. And a laborer with a jack hammer, breaking apart a road, should not be exposed to toxic particles while doing their job.
Norlite mixes and stores block mix in massive, uncovered piles. The fugitive dust from these piles, as well as from Norlite’s aggregate product, are a public nuisance. According to the New York Attorney General, 56 tons per year of fugitive dust from Norlite spreads into the surrounding community. We breathe what they burn.
Currently, the DEC allows Norlite to do this based on the terms of an expired permit which incorporated the federal “Bevill amendment” which has now been repealed. That’s why the City of Cohoes needs to enact a local law to protect public health.
The draft law states that “No person or entity shall mix, combine or blend ash with any product if the ash is from a commercial hazardous waste incinerator. This prohibition shall also apply to any material collected from fine-particle control devices serving as pollution control or containment systems at any hazardous waste incinerator or kiln.”
Fly ash is a hazardous material produced by Norlite
The incineration of hazardous waste produces fly ash, flue gas emission control waste, and slag (hereinafter collectively as “hazardous waste ash”). Toxic ash may contain chemicals and heavy metals such as arsenic, barium, cadmium, chromium, lead, mercury, and nickel, which are all potentially toxic to humans and are known to cause or contribute to cancer, lung and heart ailments, liver and kidney damage, neurological damage, and premature mortality.
Toxic ash may also contain mineralogical toxins such as fine crystalline silica when the feedstock to the industrial process contains silica. Fine particulate crystalline silica induces silicosis when inhaled and is a known respiratory health risk. Hazardous waste ash may be inhaled and become lodged in the deepest parts of the human respiratory system, leading to potentially fatal inflammation and immunological reactions.
The federal Environmental Protection Agency and the Hochul Administration (New York DEC) have revoked Norlite’s Authority to Avoid Treating Such Ash as a Hazardous Waste, Yet Governor Hochul and her DEC have shockingly allowed Norlite to continue this toxic practice
In a letter to the City of Cohoes in June 2021, the US EPA wrote: “Effective April 19, 2020, NYSDEC modified the Part 370 series of its regulations such that the Bevill Exclusion no longer applies to light weight aggregate facilities in New York State. In a letter dated April 16, 2021, NYSDEC informed Norlite that its facility cannot use the Bevill Exclusion for the APC wastes (dusts and sludge) generated at the facility.”
Norlite has failed to comply with the changed regulation. Until recently, the Hochul administration failed to take needed enforcement action.
In a letter to the Mayor of Cohoes dated June 4, 2021, NY DEC contended that since Norlite was authorized in its expired permit to use the Bevill amendment exception, it would be allowed to continue its violation with the new rules until its permit was re- authorized. This could be years away.
However, when the state Comptroller conducted a recent audit of DEC’s air monitoring program (released September 2023), DEC in its formal response to the audit’s criticism of the high number of expired permits, asserted that expired permits are required to comply with new regulations. DEC can’t have it both ways. And why wouldn’t a state agency want to protect our health?
On August 31, 2023, DEC finally notified Norlite that it was amending its expired permit to require the company to treat the ash from its air pollution control as a hazardous waste. Norlite objected and now DEC is holding various hearings related to getting Norlite to comply with what DEC told it to do in April 2021. This is something that should have happened years ago and may not be resolved for many more years, unless the City of Cohoes adopts a new local law. (https://www.dec.ny.gov/enb/20231011_hearings.html). This continues DEC’s decades-long practice of finding Norlite in violation of its permits, imposing some small fines, while Norlite continues to act in violation of its permits. Paying modest fines is just considered the cost of doing business by this company.
What Happens Now to the Fly Ash from the Pollution Control Equipment?
For decades, DEC has allowed Norlite to create this block mix because of an obscure mining exemption (Bevill amendment), but it is no longer legal. Norlite stores block mix in massive, uncovered piles, which seep into the water and soil, and blow all over as fugitive dust. The Attorney General alleges that Norlite emits 56 tons of fugitive dust into the surrounding community every year. This dust comes from the block mix pile, as well as from enormous piles of aggregate (which by itself contains carcinogenic silicates). The Attorney General is currently suing Norlite for creating a public health problem and nuisance, largely because of this fugitive dust.
Why does Cohoes need to legislate its own environmental protection against Norlite LLC?
While DEC, after several years of inaction, recently took steps to begin the process to amend Norlite’s permit to require the proper treatment of the toxic ash, DEC unfortunately has failed to properly enforce permit requirements for decades. DEC may also fail to amend the permit as required. Governor Hochul, NYS DEC and the State Department of Health have also failed to provide the protections to which Cohoes is entitled under the new NYS constitutional amendment guaranteeing clean air and water. Cohoes must therefore provide this protection for themselves and their neighbors, with local legislation, because of state abdication of environmental protection responsibility.