CONFERENCE OF SOUTHERN COUNTY ASSOCIATIONS
Regional Solid Waste/Environmental Network
Technical Documents
and
Newsletters
October 1993
Funded by EPA Region IV
ama • Arkansas - Florida - Georgia - Kentucky - North Carolina - South Carolina - Tennessee - Texas -Virginia - West Virginia
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Project Overview
The Conference of Southern County Associations was established in 1990 by a coalition of
statewide county government associations located in the Southeastern United States. CSCA
serves as a network to assist its members in sharing information on issues of common
interest. While CSCA has incorporated, primarily for the purpose of receipt of grant funds
from the U. S. Environmental Protection Agency, it has no staff or budget. Member
associations made a commitment during the initial program set up to keep the network
simple and informal. CSCA meetings are held at convenient intervals throughout the year
and member states rotate as meeting hosts. Special CSCA sessions, if warranted, are also
conducted during the NACo annual conference and legislative conference. Topics for
meetings conducted to date have included revenue/finance, public safety, health/human
services, ethics, insurance pools and organizational overviews of the member state
associations.
During the initial session of the member states, a roundtable discussion was conducted to
identify the top crisis confronting the various associations. Each of the seven states in
attendance indicated without hesitation that the issue of solid waste management was by far
the most difficult issue facing counties within the region. Given this factor, several staff
members approached EPA Region IV to discuss the possibility of establishing a public
private partnership project. As initially envisioned, the project would combine the financial
and technical assistance resources of EPA with the membership base and established
communication network of county government associations.
After eighteen months of struggling to lay a foundation for this unique concept, a successful
formula was defined. As the project now functions, EPA Region IV provides a full-time
senior staff person utilizing the Intergovernmental Personnel Act (IPA) program. This
program provides full salary, fringe benefits and some incidental costs for a two year period.
There is an option to file for a two year extension if warranted. In addition to the staff
position, the EPA has provided funds for office operation. The project coordinator is a
specialist in EPA grant writing. He concentrates his attention on federal project filing
requirements, the preparation of a project newsletter and coordination of work conducted
by project contractors.
To date, contract work has been conducted by the national consulting engineering firm of
Roy F. Weston, Inc. in cooperation with Dr. Jim Kundell a senior advisor of the Carl Vinson
Institute of Government at the University of Georgia. The various products of this CSCA
venture are included in this document.
For more information on the CSCA environmental initiative please contact CSCA Chairman
Mr. Jerry Griffin (Executive Director of the Association County Commissioners of Georgia)
at (404) 522-5022 or the project staff contact Mr. John Gardner at (404) 487-5477.
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Roy F. Weston, Inc.
Roy F. Weston, Inc. (WESTON®) is a national consulting engineering firm that has served
government and industry in the environmental fields for 40 years. WESTON's primary areas
of experience are Solid and Hazardous Wastes, Air Quality, Water and Wastewater
Management, Groundwater Hydrogeology, and Energy. WESTON's staff of more than
3,000 employees comprise a multi-disciplinary scientific and civil, chemical, environmental,
mechanical, electrical, and sanitary engineers; planners; chemists; biologists; geologists;
economists; ecologists; and other skilled professionals.
Roy F. Weston, Inc. has been providing diversified environmental engineering and consulting
services to clients for more than 35 years. WESTON has served more than 4,500 clients
including local, state, and Federal governments, and industrial, institutional, and commercial
clients. As an innovative leader in the environmental field, WESTON has successfully
completed projects throughout the world.
WESTON's mission is to assist clients with enhancing the quality of human life and the
physical environment through the creative and sound application of human, economic, and
natural resource principles; advanced science; and applied technology. WESTON's objective
is to provide comprehensive and integrated professional services efficiently and effectively.
The key to our success is the ability to work with clients to define, address and resolve their
environmental concerns. WESTON offers the technical talent, specialized expertise, and
requisite facilities that are so important in responding to environmental issues.
WESTON's comprehensive service areas include:
• Solid Waste Management
• Wastewater Management
• Water Supply and Resources
• Air Quality Management
• Groundwater Management
• Asbestos Management
• Hazardous Waste Management
CERCLA Programs and Site
RCRA Programs and Site
• Information Management Systems
• Laboratory Services
• Life Sciences
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Management Consulting
Occupational Health and Safety
Pollution Prevention
Process Safety and Emergency Management
Radiological Waste Management Planning
Remediation and Construction
Thermal Treatment Systems
James E. Kundell, Ph.D.
Dr. James Kundell, is a Senior Technical Advisor to WESTON. Dr. Kundell has served as
an environmental advisor to states and local governments for more than a decade. He has
an in-depth understanding of a wide range of policy and technical issues related to solid
waste management, wetlands, stormwater, water and wastewater management, and air
quality.
Dr. Kundell is a Senior Associate at the Carl Vinson Institute of Government at the
University of Georgia. Dr. Kundell, who holds a Ph.D. in environmental science from
Syracuse University, is the author of nearly 100 books, articles and public policy reports on
solid and hazardous waste management and other environmental and natural resource topics
including water resources, wetlands, air quality, and growth management. Dr. Kundell has
been instrumental in developing state solid waste management legislation and solid waste
management plans in seven states and has provided information and advice to several
others. He was a key architect in developing Georgia's Comprehensive Solid Waste
Management Act and several other pieces of environmental legislation. He was hired by
the Governor of Kentucky to draft that state's comprehensive solid waste management act
which was enacted in 1991 and is a major contributor to the state solid waste management
plans of both Georgia and North Carolina. In 1986-1987, Dr. Kundell chaired the National
Conference of State Legislatures Solid Waste Management Committee. He currently is
chairman of the Georgia Recycling Market Development Council, vice chairman of the
Southern Legislative Conference's recycling committee (e.g. RENEWS), and serves on the
editorial advisory board of Solid Waste and Power.
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TABLE OF CONTENTS
Section 1
Where Are We Headed?
Environmental Trends: Implication for CSCA
Section 2
Local Government Solid Waste Management
Financial Assurance Requirements
Section 3
Section 4
Solid Waste Flow Control
Regulatory Impact of Federal Environmental Legislation
on Solid Waste Management
Section 5
Section 6
Network Newsletters
Bits & Pieces
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SECTION 1
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Where Are We Headed?
Environmental Trends: Implications for CSCA
James E. Kundell
Deanna L. Ruffer
Roy F. Weston, Inc.
1993
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Where Are We Headed?
Environmental Trends: Implications for CSCA
The information in this report has been compiled to serve as a base for
consideration of what the future may hold for CSCA members. The focus of this report
is on the broad array of environmental issues that may confront us in the future. Some
of these issues may already be upon us while others may not appear for many years, if at
all. It is important, however, to think about where we are headed, what it might mean
for CSCA members and their constituents, and to consider what steps might be taken to
better enable CSCA members and their constituents to effectively address these
emerging issues in a comprehensive manner.
This report is divided into five parts:
1. Population trends;
2. Environmental and natural resources trends;
3. Expenditures on state environmental and natural resources programs;
4. Changing focus of environmental policies; and
5. Implications for CSCA states.
Each part includes thoughts and observations relating to the trends and their implications
for CSCA counties.
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Population Trends
Population changes over the past 40 years have had a profound impact on the
CSCA region. The increased population results in increasing demands being placed on
the natural resources base and increasing generation of waste products, many of which
become pollutants. Table 1 presents population changes in the region between 1950 and
1990 in total numbers and percent change.
Table 1
Population Change in CSCA States: 1950-1990
(1,000)
State
Alabama
Arkansas
Florida
Georgia
Kentucky
Mississippi
N.Carolina
S.Carolina
Tennessee
Texas
Virginia
W.Virginia
TOTAL
1950
Pop.
3,062
1,910
2,771
3,445
2,945
2,179
4,062
2,117
3,292
7,711
3,319
2,006
38,819
Percent
Change
1950-60
6.7
-6.5
78.7
14.5
3.2
0.0
12.2
12.6
8.4
24.2
19.5
-7.3
16.1
Percent
Change
1960-70
5.4
7.7
37.1
16.4
6.0
1.8
11.6
8.7
10.1
16.9
17.2
-6.3
14.0
Percent
Change
1970-80
13.1
18.9
43.5
19.1
13.7
13.7
15.7
21.9
16.9
27.1
15.0
11.8
22.0
Percent
Change
1980-90
3.8
2.8
32.8
18.6
0.7
2.1
12.7
11.7
6.2
19.2
15.7
-8.1
14.9
1990
Pop.
4,041
2,351
12,938
6,478
3,685
2,573
6,629
3,487
4,877
16,967
6,187
1,793
72,006
%
1950-
90
32.0
23.1
467.1
88.0
25.1
18.1
63.2
64.7
48.1
220.0
86.4
-10.6
85.5
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Thoughts and Observations: Population Trends
1. CSCA states are experiencing a 43 year population doubling time. Today we have
twice as many people in the CSCA region as lived here in 1950. The population
growth in the CSCA region is equivalent to that of many third world countries.
2. Overall, the population is increasing at a fairly rapid rate but it is not consistent
across the CSCA region. Some areas are experiencing rapid, unsustainable
growth while other regions are losing population.
3. Development of growth management strategies and policies is becoming
increasingly important.
4. Coastal zone management efforts and other actions designed to deal with growth
as it relates to environmentally sensitive areas will increase. Lucas-type "taking"
conflicts will increase.
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Environmental and Natural Resource Trends in CSCA States
This section presents important points and apparent trends relating to the
environment (i.e. waste management, air quality, water quality) and natural resources
(i.e. water resources, forest resources, wildlife resources, nonrenewable resources). The
intent is to present a snapshot of where the CSCA region is and where it is headed in
relation to the various environmental and natural resources components.
Waste Management
Waste management efforts in the region are currently going through a transition
period, especially for solid waste management. When the transition is finalized, it
appears that the following observations will hold true for the region.
1. Solid waste management will be regionalized with fewer but larger disposal
facilities. They will increasingly be operated by the private sector or groups of
local governments operating them in a business-like manner.
2. Recycling and composting efforts will continue but plateau at a sustainable level.
They will increasingly be subjected to regulations.
3. Solid waste/recyclables management will increasingly face the potential of being
regulated as a utility.
4. Greater emphasis will be placed on pollution prevention and source reduction.
5. Solid waste regulatory attention will turn to:
a. industrial solid waste disposal practices (industrial D waste);
b. C&D disposal practices; and
c. management facilities currently permitted by rule.
6. Collection and use of methane as a fuel will increase.
7. Hazardous waste and low-level radioactive waste will continue to be managed on
a regional, interstate level (?).
8. High-level radioactive waste will be managed at the national level.
Transportation (processing?) of high-level waste will be an issue.
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Air Quality/Energy
Air quality and energy policies are inextricable. Although air pollutants may be
created by activities not associated with energy usage, a number of the major pollutants
are directly related to energy utilization.
1. Historically, air pollution has been a local concern in urban areas and around
industrial sites. Since the 1960s, it has evolved to a national issue, due in part to
the automobile, to an international issue (i.e. acid deposition), and to a global
issue (stratospheric ozone depletion and global climate change).
2. The Southeast is more prone naturally to have some types of air quality problems
due to its warm moist climate, naturally occurring high levels of volatile organic
compounds from vegetation, and occurrence of stagnating air masses that allow
pollutants to build up.
3. Ground level ozone is the most significant air pollutant in CSCA states.
4. All CSCA states have at least one air quality nonattainment area for ozone,
carbon monoxide, paniculate matter, or lead. Some of these are interstate in
nature.
5. Implementing the Clean Air Act Amendments of 1990 will provide some local
governments (e.g those in nonattainment areas) with considerable responsibility
and cost.
6. All local governments will face higher energy costs.
7. Energy conservation and increased energy efficiency (i.e. pollution prevention)
will become more important and will affect local actions relating to: location,
design & construction of facilities; transportation (i.e. mass transit, alternative
fuels); purchasing; work behavior (i.e. telecommuting).
8. While policies are being implemented to control air pollution resulting from
automobile exhaust, the price of gasoline today in real terms is at a 50-year low.
In 1940, in today's dollars, a gallon of gasoline cost $1.57; in 1981 it cost $2.02;
and now it costs $1.18.1 The low price of gasoline encourages the increased use
of the automobile and thus increased emissions. Consequently, in our attempts to
protect air quality, we are addressing the symptoms of the problem rather than
the problem itself.
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9. Global climate change and stratospheric ozone depletion have the potential to
have monumental impacts on what we do and how we do it.
• Loss of coral reefs (10 years) and marine fisheries (This may or may not be
related to changes in water temperature but for some reason an important
resource is disappearing at a phenomenal rate).
• Potential sea level rise resulting in heavy investments in protecting the built
environment and loss of many wetlands and other natural areas.
• More erratic weather conditions (storms and droughts).
• Changes in climatic regions with major impacts on agriculture and forestry
production and species extinction.
Water Quality
In 1972 the Federal Water Pollution Control Act was passed that made it a
national goal to have "fishable" and "swimmable" waters in the United States by 1977.
We have not reached that goal but considerable progress has been made. This progress
is based on the initiatives included in the Act:
• requirements for classification of streams based on water usage and quality;
• requirements for monitoring water quality;
• establishment of the national pollution discharge elimination system
(NPDES) requiring permits for point discharges to surface waters;
• establishment of the construction grants program to help finance
construction of wastewater facilities; and
• requirements to study nonpoint sources of pollution.
The permit process has worked well to control point discharges of wastewater. Currently
emphasis on controlling nonpoint sources is increasing and the construction grants
programs is being converted to a revolving loan program.
1. Water quality has improved over the past 30 years by focusing on control of the
end-of-the-pipe measures, major public and private investments in wastewater
treatment infrastructure construction, and regulatory actions.
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2. Water quality is still a problem in many areas, particularly below urban areas.
3. The Clean Water Act is up for reauthorization in 1993 and will focus on:
• river basin management;
• nonpoint pollution control; and
• pollution prevention.
4. The least costly approaches for protecting water quality have already been used.
Treating wastewater to meet higher standards will be costly.
5. States will continue to institute their revolving loan funds for wastewater
treatment plant construction but these programs must be supported at a level that
allows for timely project funding.
6. Land use measures designed to control stormwater and erosion will become more
common. Greater emphasis will be placed on river basin/watershed management,
protection of vegetative buffers along streams and lakes, use of water retention
mechanisms, mandatory best management practices, and protection of highly
erodible soils.
7. Greater emphasis will be placed on land use activities that affect ground water
quality. Measures such as wellhead protection will become more common.
Water Resources/Supply
As the population multiplies, increasing demands are placed on the regions water
resources for competing uses. Although the population has doubled during the past 43
years, the water resources are essentially the same. Although dams have been
constructed that regulated the flow of surface water, storing water for use during dry
periods, the quantity of water available has not significantly changed.
1. Even though the CSCA region is the "wettest" region in the country, water
resources are not evenly distributed over the region, nor are demands for water
evenly distributed.
2. Interuse water conflicts (i.e. instream v offstream and among public supply v
industrial v agricultural v power production) will increase as evidenced by the call
for minimum instream flows relating to FERC licenses.
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3. Demands for interbasin water transfers will increase, especially in the Piedmont
and other "hillier" regions where population increases are occurring.
4. Interstate water conflicts will increase as evidenced by proceedings in Virginia and
North Carolina; Alabama, Florida and Georgia; and South Carolina and Georgia.
5. States will be moving to institute and tighten water rights and water allocation
programs. This may include mechanisms for the transfer of water rights and
greater use of water markets.
6. Reservoir siting will become more difficult due to the remaining sites being less
acceptable (e.g. 80% of Texas' potential reservoir sites have been used), the
impacts on wetlands, and the costs.
7. Limitations of withdrawals from some aquifers (e.g. Edwards Aquifer in Texas,
Floridan Aquifer in Florida) may be imposed.
8. Local governments are faced with major costs associated with water supply
infrastructure. To assist, the Clinton Administration has proposed a revolving
loan, similar to that used for wastewater facility construction, for water supply
purposes.
9. Wetlands protection measures will be addressed and formalized. Delineation
criteria will be agreed to. States will likely move to assume implementation of
the 404 permitting program (Section 404 of the Clean Water Act) and there will
be an increased role for local governments in wetlands management. Greater
emphasis will be placed on advanced delineation to enable local governments to
"flag" wetlands in their planning process.
Forest Resources
Throughout the history of the United States, forests have been used for economic
purposes. Most of the old growth forest has been cleared for agricultural purposes,
urban growth, for fuel wood, and to produce lumber, paper and other forest products.
1. Forest acreage has fluctuated over the years but increasing demands for land will
result in less forested acreage in the future.
2. Softwood trees, principally pines, are generally of more economic value than
hardwood trees such as oaks and hickories. Hardwood trees are of more value to
wildlife than pines.
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3. Managed forests tend to be less diverse (e.g. pines) and younger than natural
forests.
4. Demands for forest products are increasing. Some of the increasing demands for
paper and wood products can be met by increasing recycling of paper and wood.
5. Leasing of land for hunting is becoming a significant source of income for forest
land owners and a means for leaving acreage in hardwoods rather than converting
them to pine plantations.
Wildlife Resources
The CSCA region is very likely the most biologically diverse region in the United
States. It includes the complex mixed mesophytic forest of the Appalachians, mixed oak-
pine forests, hardwood bottomland forests, freshwater and coastal wetlands, the
subtropical region of south Florida, and the more arid grassland and desert areas of
Texas.
1. Wildlife species have been heavily used in the past, resulting in the extinction of
some species (i.e. passenger pigeon, ivory billed woodpecker, and Carolina
parakeet). Other species were extirpated from some areas but did not become
extinct (i.e whitetailed deer, turkey, cougar). Many of these former species have
been reintroduced throughout their former range.
2. Game laws focusing on the species that can be taken, the means by which they
can be taken, and the time of day and year that they can be taken first appeared
in the 1700s. All CSCA states have well developed fish and wildlife laws and
programs.
3. As land use changes occur, populations of plants and animals are likely to become
isolated. This fragmentation can lead to insufficient habitat to maintain the
populations and insufficient numbers of plants or animals to function as a
breeding population, resulting in their extirpation. Increasingly, wildlife corridors
will be necessary to enable plants and animals to interbreed with other
populations of their species.
4. Increasingly, greater emphasis is being placed on nongame and endangered
species. The controversial Endangered Species Act is up for reauthorization in
1994. This effort will likely focus on broadening the focus of the law from species
to habitat.
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Nonrenewable Resources
The CSCA region has a variety of nonrenewable resources such as fossil fuels (i.e.
coal, oil, natural gas); iron, copper and other metal ores; stone (i.e. dimension stone,
limestone); and clays and sand. These nonrenewable resources have been used
throughout our history and have contributed to the economic development of the region.
On the other hand, extraction and use of some of these resources has resulted in
environmental problems.
1. Most coal deposits in the CSCA states have a relatively high sulfur content and
are thus less valuable due to air pollution concerns. Decreased demand for high
sulfur coal has major economic impacts on coal mining regions.
2. Petroleum extraction in the Gulf of Mexico contributing to land subsidence is
likely contributing to the demise of the highly productive marshes that support the
Gulf seafood industry.
3. Increasingly, policies will focus on ensuring that, as extraction of nonrenewable
resources occurs, land will be brought back into biological productivity.
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State Environmental and Natural Resources Expenditures
One approach used to show the emphasis placed by states on their environmental
and natural resources programs is to compare their expenditures for these programs.
These figures are fairly easy to generate and can be presented in comparable fashion
such as a percentage of the state budget or on a per capita basis. Unfortunately, the
interpretation of what these figures represent is often in error. Rather than showing the
emphasis a state places on these programs, they more often show the extent of
environmental problems the state is dealing with or the nature of the natural resources
they are attempting to manage. For example, a state that has major environmental
problems must spend more to address these problems than a state with a high
environmental quality. So too, a state with certain natural resources must spend more to
manage these resources. Florida spends more on coastal zone management than
Tennessee and Kentucky spends more on regulating coal mining than Mississippi.
Thoughts and Observations: Environmental and Natural Resources Expenditures
1. CSCA states have historically invested less per capita on environmental protection
programs than states in other regions of the country.
2. This may be due to a number of factors including demographics (i.e. education,
economic conditions), industrial mix, and the nature of environmental problems in
the states.
3. The correlation between spending on environmental programs and environmental
quality is tenuous at best.
4. Per capita spending on environmental and natural resources programs will
increase in the future.
5. The focus of environmental efforts will increasingly be on "sustainability."
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Focus of Environmental Policies
Environmental policies are in a state of flux. At the federal level, a wide variety
of efforts are underway that will have significant implications on environmental matters
and will effect state and local government environmental programs. Major activities at
the federal level are a result of a new administration and its attempt to grapple with the
environmental and natural resources issues it faces in light of budget realities. Some of
the major initiatives include the following.
• Reorganization of Federal Bureaucracy
* Converting the Environmental Protection Agency a cabinet level
department [e.g. United States Department of Environment
(USDE)].
* Abolishing the Council on Environmental Quality which is suppose
to advise the President and Congress on environmental matters.
* Creation of the National Biological Survey, patterned after the U.S.
Geological Survey, to conduct research on plant and animal species.
The NBS will be located in the Department of Interior.
* Creation of a 2 year commission to recommend restructuring of the
federal environmental and natural resources bureaucracy to reduce
duplication and to better address problems.
Additionally, federal developments such as the reductions in the defense establishment
(e.g. base closings) and refocusing of research efforts toward global environmental
problems, clean up of federal facilities, and the changing focus of National Laboratories
toward environmental problems may have significant impacts on state and local
governments.
It is also anticipated that additional responsibilities will be shifted to state and
local governments in the environmental area, with or without accompanying financial
support (e.g. unfunded mandates).
As presented in Table 2, the focus of environmental issues is changing in a variety
of ways. To address these changes, local governments should anticipate them and
prepare themselves to address them. This will require a wide variety of actions by local
governments but principally it necessitates local officials making decisions within a
framework of environmental consciousness. By increasing awareness of environmental
realities, local officials can make decisions that support rather than hinder efforts to
protect environmental quality.
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Table 2
Changing Focus of Environmental Policies
1960-1990
Short-Term Perspective
Reactive
End-Of-Pipe
Point Sources
Limited Number of Major Pollution
Sources
Single Media
Health Risks
Industrial Activities
Single Focus Agencies
Autonomous Agencies
Autonomous Local Governments
Public Information
Everyone Pays (General Revenues)
1990-2000
Long-Term Perspective
Proactive (Plan)
Pollution Prevention (Source Reduction)
Nonpoint Sources
Large Number of Diffused Pollution
Sources
Multimedia (Integrated)
Ecological Sustainability
Lifestyle Activities
Superagencies
Multiple Agency Coordination
Shared Services, Coordination,
Regionalization, Consolidation
Public Involvement
User/Polluter Pays
Thoughts and Observations: Environmental Policies
1. We will have to get smarter to address environmental concerns in the future,
because the problems are becoming more complex and the easy solutions have
already been used.
2. Information generation, use and sharing will become increasingly important.
Information systems will have to be used.
3. Greater emphasis will have to be placed on how to effectively include the public
in the decision-making process (e.g. Total Quality Management?).
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4. We will have to function in a business-like manner to ensure that selected options
are cost effective.
5. Environmental protection efforts and economic development efforts will
increasingly have to be consistent
6. Health risks from resistant strains of micro-organisms will emerge (i.e. cholera,
tuberculosis).
7. The nature of the pollution sources and health risks suggests that addressing them
will be more difficult and probably more controversial (e.g. land use controls;
changing human behavior). Early and sustained public involvement will
increasingly become necessary.
8. Prioritizing environmental concerns is increasingly important.
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Implications for CSCA
The shift in focus of environmental policies is in response to a transformation in
the nature of the problems we are attempting to manage. The problems are changing
from principally health to ecological risks, from point to nonpoint sources, from a limited
number of major sources to a larger number of diffuse sources, and from only industrial
to broader lifestyle activities. With these shifts, comes the need to develop new
strategies for addressing environmental concerns. The command and control regulations
of the past will remain but they must be supplemented with technical assistance; public
outreach, education, and involvement; public-private partnerships and other forms of
cooperation; and other mechanisms designed to prevent and resolve problems in a cost
effective manner.2 The point to remember is that there are more problems than
government or society has the capacity to address and, therefore, we must focus our
efforts on the most significant problems.
Three components are essential for us to be able to sustain environmental quality
in light of these trends. First, as environmental responsibilities devolve from the federal
government to states and their subdivisions, the capacity must exist at these levels to
effectively implement sound environmental policies. Capacity building must focus on the
following:
• financial capacity or having the fiscal resources to carry out the
environmental responsibilities;
• legal authority to carry out effective environmental programs,
including enforcement authority where appropriate and necessary;
and
• technical capability to competently carry out environmental
responsibilities.
CSCA should assist its constituents to develop financial, legal and technical capacity to
effectively address environmental requirements in the future.
The second component for sustaining environmental quality is to focus resources
on the most pressing environmental problems. A mechanism is needed to prioritize
environmental problems and to address the most significant first. Without such an
approach, limited resources can be squandered on relatively insignificant problems while
severe problems go unaddressed. Both states and local governments in the CSCA region
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should consider adopting an environmental priority setting process to determine which
problems are most pressing in their jurisdiction.1
The environmental priority setting process, which is already underway in Alabama
and Kentucky, should be designed to develop consensus among elected and appointed
officials, people with environmental expertise, and the general public. It is important to
include representatives of the general public because the public perception of
environmental problems tends to differ from that of scientists. Table 3 presents the most
significant ecological and health risks as identified by EPA's Science Advisory Board.
Table 4 presents the public's view of environmental problems by presenting the
percentage of the respondents who rated each problem as very serious. Note that the
problems in bold in Table 4 relate to the most significant problems identified by the
Science Advisory Board. These tables suggest that there is a vast difference between
what the science community and the general public perceive as the most important
environmental problems.
The third component for sustaining environmental quality is an environmentally
literate public. It is important to realize that the focus of environmental efforts is
changing from point sources to nonpoint pollution and from industrial sources of
pollution to ones that are more dispersed and related to modern life style. To effectively
address these sources of contamination, public information, education and involvement
become critical. People have to understand why these dispersed pollution sources can
collectively create major problems; what needs to be done to prevent or correct the
problems; and how to effectively address the problems. It is unrealistic to think that
public support and action can be obtained without significant investments in informing
and involving the public. The use of advisory committees, focus groups, and other
measures to incorporate public involvement into the decision making process will
become increasingly important in the future.
The public must also be provided with good information. CSCA should support
sound research efforts designed to improve our understanding of problems and how to
address them; the development and deployment of information systems to make accurate
information more readily available to all users; and education efforts to inform the
public about the environment. Better, more accessible information and an informed
public will help CSCA counties more effectively respond to changing environmental
policies.
1 Additional information on environmental priority setting can be obtained from the Northeast Center for
Comparative Risk, Vermont Law School, P.O. Box 96, Chelsea Street, South Royalton, VT 05068.
B.\C02\CSCA\PAOLR002 JPA
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Table 3
Ecological and Health Risks
EPA Science Advisory Board
High-Risk Ecological Problems*
Global climate change
Stratospheric ozone depletion
Wildlife habitat alteration and destruction
Species extinction and loss of biodiversity
Medium-Risk Ecological Problems
Acid deposition
Pesticides
Airborne toxic chemicals
Toxic chemicals, nutrients, and turbidity in surface water
Low-Risk Ecological Problems
Oil spills
Groundwater pollution
Radioactive isotopes
Acid runoff to surface water
Thermal pollution
High-Risk Health Problems
Indoor air pollution
Outdoor air pollution
Worker exposure to industrial or farm chemicals
Pollutants in drinking water
Pesticide residues on food
Toxic chemicals in consumer products
* Items in each category are not listed in rank order.
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Table 4
Public's Top Environmental Concerns
Problem
Percent
Active hazardous waste sites
Abandoned hazardous waste sites
Water pollution from industrial waste
Occupational exposure to toxic chemicals
Oil spills
Destruction of the ozone layer
Nuclear power plant accidents
Industrial accidents releasing pollutants
Radiation from radioactive wastes
Air pollution from factories
Leaking underground storage tanks
Coastal water contamination
Solid waste and litter
Pesticide risk to farm workers
Water pollution from agricultural runoff
Water pollution from sewage plants
Air pollution from vehicles
Pesticide residues in food
Greenhouse effect
Drinking water contamination
Destruction of wetlands
Acid rain
Water pollution from city runoff
Nonhazardous waste sites
Biotechnology
Indoor air pollution
Radiation from x-rays
Radon in homes
Radiation from microwave ovens
67
65
63
63
60
60
60
58
58
56
55
54
53
52
51
50
50
49
48
46
42
40
35
31
30
22
21
17
13
B:\C02\CSCA\PADLR002 JPA
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References
1. John E. Petersen. "Paradoxes Aplenty-and Guess Who Gets to Pav." Governing. September 1993, pg 78.
2. Daniel J. Fiorino. 'Can Problems Shape Priorities? The Case of Risk-Based Environmental Planning,'
Public Administration Review. Vol. 50, No. 1, January/February 1990, pp 82-90.
B.\C02\CSCA\PAOLR002 JPA
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SECTION 2
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CONFERENCE OF SOUTHERN COUNTY ASSOCIATIONS
REGIONAL SOLID WASTE/ENVIRONMENTAL NETWORK
LOCAL GOVERNMENT SOLID WASTE MANAGEMENT
FINANCIAL ASSURANCE REQUIREMENTS
Deanna L. Ruffer and James E. Kundell, Ph.D.
In the solid waste management field, financial assurance refers to the provisions that are made
by landfill owners to ensure that sufficient funds are available to close the landfill in an
environmentally sound manner and to "care" for the landfill after it is closed. Financial
assurance is required by Subtitle D of the Resource Conservation and Recovery Act of 1976
{RCRA). Through RCRA congress directed the U.S. Environmental Protection Agency (EPA)
to establish minimum criteria, including requirements for financial assurance and closure and
post-closure care. The criteria developed by EPA were published October 9, 1991 in the
Federal Register.
The financial assurance requirements apply to all owners and operators of all MSWLF units
open after October 9, 1993, except those who are State or Federal government entities. The
rationale behind the state and federal government exemption is that they have the requisite
strength and stability to fulfill their financial assurance obligations for MSWLFs. Initially, it
was EPA's intention to require local governments to meet the financial assurance requirements.
However. EPA has proposed a rule allowing "financially sound" local governments to provide
their own "assurance". This rule was recently (May 1993) rejected by the Office of
Management and Budget (OMB). OMB has asked EPA to reconsider several key issues
regarding financial assurance. (A more in-depth description of OMB's comments is provided
later in this paper.) Thus, to date the requirements local governments must meet regarding
financial assurance are still unclear.
This uncertainty has forced many states and local governments to move forward in establishing
financial provisions for closure and post-closure care without Federal guidance. It also has left
many local government landfill owners as to the magnitude of impact this potential requirement
could have on the continued viability of specific disposal facilities.
What are the financial assurance requirements?
The financial assurance requirements developed by EPA are designed to:
(I) force accurate and advance estimation of a solid waste disposal facility's closure
and post-closure care maintenance costs and known costs of corrective action: and
101651 RPDLB001 CAS 1
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(2) create a pool of funds that will be available to the federal and state governments
if needed to cover the costs of closure, post-closure care and corrective actions
if the owner or operator of a municipal solid waste landfill is unable or unwilling
to do so.
The financial assurance requirements currently become effective 30 months following the final
publication of the solid waste disposal facility rules in the Federal Register. Thus, the effective
date by which owners of facilities that remain open after October 9, 1993 must meet the
financial assurance requirements is April 9, 1994. However, it has been announced (May 1993)
that due to the delay in finalization of the financial assurance rules for local governments EPA
will propose to change this effective date to April 9, 1995.
EPA has established standards for meeting the financial assurance requirements with the
objective of having the income from an active site include a set aside for those expenses that
will be incurred when the landfill is no longer operating, when there is minimal, if any,
economic incentive for the owner or operator to maintain the site. The sum of funds to be
set aside to demonstrate financial assurance is based on site-specific estimates of the costs
of closure, post-closure care, and (if appropriate) corrective action.
At a minimum, the approach taken by a facility owner to meet the financial assurance
requirements must satisfy the following criteria:
(1) The financial assurance mechanisms must ensure that the amount of funds set
aside is sufficient to cover anticipated costs.
(2) The financial assurance mechanisms must ensure that funds will be available in
a timely fashion when needed.
(3) The financial assurance mechanisms must be obtained by the owner or operator
by April 9, 1994 (the effective date of these requirements) or prior to the initial
receipt of waste at the disposal facility, whichever is later. For corrective action,
the mechanism must be in place no later than 120 days after the corrective action
remedy has been selected.
(4) The financial assurance mechanisms must be legally valid, binding, and
enforceable under state and federal law.
In keeping with these criteria, EPA has defined the following as acceptable approaches to
demonstrate financial responsibility (the owner or operator of the landfill can decide which of
these approaches to use):
• A trust fund with a pay-in period
• Surety bond
• Letter of credit
• Insurance
G \HQME\WP\10165\RPDLR001 CAS 2 ''"
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• State-approved mechanisms
• State assumption of responsibility
EPA requires that the owner or operator demonstrate that they have planned for these future
costs by preparing detailed written cost estimates (that must be placed in the operating record),
in current dollars, of the cost of hiring a third party to perform closure and post-closure care.
The cost estimates must be based on a worst case analysis (i.e., most costly) and be adjusted
annually for inflation. The owner or operator must annually increase or may decrease, with
justification, the amount of financial assurance provided based on these estimates.
Requirements for Closure, Post-Closure Care, and Corrective Action
For the purpose of developing financial assurance, the status of the landfill as well as the
financing and accounting procedures that have historically been used can have a dramatic impact
on how local governments should approach the provision of financial assurance. In essence,
landfills should be classified in one of four categories defined by the type of funding needed.
These categories are:
1. Funds needed to close existing landfills. For many local government landfill
owners, the issue associated with providing the necessary assurance is that funds
have not been set aside for these costs over the life of the facility. Thus in many
cases the local governments are faced with unplanned for, yet significant costs.
It is also important to keep in mind that, regardless of what approach is taken to
meeting the regulatory requirement for demonstrating financial assurance, at
some point in time costs will be incurred for the closure of existing landfills.
2. Funds needed to close new landfills. Like the cost associated with closing
existing landfills, these are costs that will be incurred, at some point in time, at
every landfill. The simplest approach to take to provide for these costs is to
establish a reserve fund with money set aside annually to provide the funds
necessary for closure by the time the facility is filled to capacity. This money
can be generated by adding an incremental amount to the fee charged for facility
use (i.e., tipping or user fee).
3. Funds needed to address post closure care needs. Like closure costs, post
closure costs will be incurred. The objective is to have sufficient funds to cover
the cost of 30 years of post closure care set aside by the time the facility is
closed. Again, for new facilities this can be accomplished simply by accounting
for this cost in the facility user fees and setting aside the necessary funds in a
reserve account. For existing facilities, the dilemma is the same as identified
relative to meeting the requirement for closure. That is, in many instances, funds
have not been set aside for this purpose over the facility life and thus a significant
amount of money must be raised in a short period of time.
GlHOMEVWPUOlSSkRPDlROOlCAS J 7/93
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4. Funds needed to correct problems that occur at operating or closed landfills.
Unlike closure and post closure care costs, the costs associated with corrective
actions at landfills will not be incurred unless a problem, such as groundwater
contamination, is encountered at a facility. Because of the significant changes
that have occurred in how solid waste facilities are designed and operated over
the past decade, there is little information available to assess the likelihood that
corrective action will be needed at a specific facility. In addition, the cost of
corrective action could vary widely from facility to facility depending on the
specifics of the problem encountered.
Financial Assurance Requirements for Local Government
To reduce the potential burden of the financial responsibility requirements on local
governments, EPA is developing a financial test designed specifically for local governments.
The concept is to allow financially strong local governments demonstrate that they possess the
necessary financial capacity and have adequately planned to meet their MSWLF obligations in
a timely manner and thus are not required to acquire additional financial assurance, establishing
a trust fund or securing a surety bond, letter of credit, or insurance.
In an April 22, 1993, letter to EPA, OMB has raised several concerns about EPA proposal rule
for "financially sound" local governments. These include:
• An opinion that EPA's proposal is not the least cost option
• A concern that EPA has not fully considered and evaluated other financial
responsibility options
• An opinion that EPA's rule artificially inflates the cost of closure and post-
closure care and thus the amount of financial assurance required
• A requirement that EPA quantify the risks of human exposure that will be
prevented by the financial assurance rule
OMB has suggested EPA consider such options as using the underground storage tank
financial assurance rule or revise the financial stability test to ensure that more local
governments qualify or simply exempt local governments from financial assurance
requirements entirely. A significant delay in the issuance of the financial assurance rule,
leaving states and local governments to determine how to proceed.
State Rule
Under Subtitle D, states can (and are encouraged) to apply to EPA for approval of their
regulatory programs for implementing Subtitle D. This approval gives the state the lead role
•L ~OMC\WF>H01S5VRPDLftOOt CAS 4 7'93
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in regulatory implementation of Subtitle D. although it's important to recognize that even in
approved states, the Federal program still applies. A state's submittal to EPA must include tts
planned program for financial assurance which, like all aspects of the program, must be
technically comparable and at least as stringent as what is contained in 40 CFR 258. Each of
the participating states is currently seeking approval of their programs from EPA.
In the financial assurance part of their program, a state may:
(1) Choose to adopt the federal requirements.
(2) Limit the Federal mechanisms allowed to be used.
(3) Develop its own approach (at least as stringent as Subtitle D) to fulfill the
financial assurance requirements.
(4) Assume financial responsibility on behalf of facility owners and operators.
States can define additional (to those defined by EPA) approaches to financial assurance as long
as the approaches meet the criteria established by EPA and are included in the state plan for
Subtitle D implementation that is approved by EPA. The objective is to allow states sufficient
flexibility lo select and tailor their financial assurance programs to address as many options for
compliance as possible. For example, a state may allow an approach to financial assurance to
be used generally or it may choose to allow individual approaches submitted by facility owners
and operators and reviewed on a case-by-case basis. However, few, if any, of the participating
states have indicated an intention to take advantage of this flexibility.
In addition, states can assume financial assurance responsibility. State assumption of
responsibility involves either the state assuming the legal responsibility for the owner or
operator's compliance with closure, post-closure care and/or corrective action obligations, or the
state assuring that funds will be available from state sources to cover the obligations. Again,
none of the regulatory agencies in the participating stales has indicated an interest or willingness
to do this.
Summary of Allowable Mechanisms for Providing Financial Assurance
With the exception of a trust fund, the allowable financial mechanisms do not require the owner
or operator to provide full funding in advance of closure or the provision of post-closure care
or corrective action. Rather, third-party assurance mechanisms (surety bonds, letters of credit,
insurance, and guarantee) provide future availability of funds when needed.
Trust Fund. An owner or operator of a landfill may satisfy the financial assurance
requirements by establishing a trust fund, which is a sum of money set aside to cover
anticipated future costs. The trustee (manager of the trust) must have the authority to
act as such and his trust operations must be regulated and examined by a federal or
slate agency.
-------
In the case of closure and post-closure care, the owner or operator must make annual
payments into the trust over the term of the initial permit or over the remaining life of
the landfill unit, whichever is shorter. These annual payments allow the trust to be
gradually funded over the expected life of the facility. This is referred to as the pay-in
period. For a trust fund to demonstrate financial assurance for closure and post-closure
care, the ultimate value of the trust fund at the time of closure must be equal to the cost
estimates for closure and post-closure care.
In the case of corrective action for known releases, payments must be made over one-
half of the estimated length of the corrective action program thereby ensuring sufficient
funds to cover the costs of corrective action incurred during the second half of the
corrective action period. The requirements for a corrective action trust fund differ
from closure and post-closure care because EPA believes (1) the magnitude and
duration for corrective action costs are significantly greater and (2) corrective action
financial assurance is required only upon the detection of a release while closure and
post-closure financial assurance are required prior to the activities being undertaken.
Surety Bond. An owner or operator may demonstrate financial assurance for closure
and post-closure care by obtaining a payment or performance surety bond, or by
obtaining a performance bond in the case of corrective action. A surety bond
guarantees payment for, or performance of, closure, post-closure care, or corrective
action if the owner or operator fails to fulfill these obligations. A payment bond
guarantees payment by the surety company if the owner or operator is unable or
unwilling to cany out those activities. A performance bond ensures either payment or
performance of the required activities on behalf of the owner or operator and is the
only surety bond allowed to be used to demonstrate financial assurance for corrective
action.
The penal sum of the bond must be in an amount equal to the current closure, post-
closure care or corrective action cost estimate. The company issuing the bond must be
listed in Circular 570 of the U.S. Department of the Treasury.
Letter of Credit. An owner or operator may also satisfy the financial assurance
requirements by obtaining an irrevocable letter of credit. A letter of credit is an
instrument issued by a bank or other financial institution that guarantees payment to the
beneficiary if the holder fails to perform certain obligations. The financial institution
issuing the letter of credit must be an institution with authority to issue such a letter and
whose letter-of-credit operations are regulated and examined by a federal or state
agency. The letter of credit must be issued for a period of at least one year in an
amount equal to the closure, post-closure care, or corrective action cost estimates. The
letter of credit must provide that the expiration date will be automatically extended for
a period of at least one year unless the issuing institution has cancelled the letter of
credit by sending notice of cancellation by certified mail to the owner and operator and
to the State Director 120 days in advance of cancellation. The name and address of the
G M1OM£\WPM0165\RPDUW01 CAS Q 7(93
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facility, and the amount of funds assured, must be included with the letter of credit in
the operating record.
Insurance. An owner or operator may demonstrate financial assurance for closure and
post-closure care by obtaining insurance, which is a contractual arrangement under
which the insurer agrees to compensate the policyholder for losses. The insurance
policy must be written to cover the full amount of the closure and post-closure care cost
estimates. A copy of the insurance policy must be placed in the facility's operating
record. At a minimum, the insurer must be licensed to transact the business of
insurance, or eligible to provide insurance as an excess or surplus lines insurer, in one
or more states.
The closure or post-closure care insurance policy must guarantee that funds will be
available to close the landfill whenever final closure occurs or to provide post-closure
care for the landfill whenever the post-closure care period begins. The policy must
also guarantee that once closure or post-closure care begins, the insurer will be
responsible for the paying out of funds to the owner or operator or other person
authorized to conduct closure or post-closure care, up to an amount equal to the face
amount of the policy.
Insurance is not an allowable mechanism for demonstrating financial assurance for
corrective action because financial assurance for corrective action is not required until
the release has been detected and insurers will not issue policies to cover the cost of
damages that have already occurred.
A trust fund is one of the most viable financial assurance mechanisms for many owners and
operators because, by allowing an extended pay-in period, the burden of financing closure, post-
closure care, and corrective action obligations will be spread over the economic life of the
facility. The disadvantage of the trust fund is that it requires setting aside funds immediately
to cover anticipated future costs. In addition to the owner or operator having to actually set
aside their own money to cover the costs of closure, post-closure care, and corrective action,
there are also costs associated with the administration of the trust, (e.g., paying the trustee to
manage the trust).
The advantage of third-party financial assurance mechanisms (letter of credit, surety bond,
insurance and guarantee) is that unlike the trust fund, the mechanisms do not have to be funded
before the facility closure occurs.
The costs of obtaining third party mechanisms is currently relatively low (e.g., one-and-a-half
to two percent of the face value of the obligation annually). However, there are disadvantages
to using these mechanisms that may outweigh the low costs. In essence, these forms of
assurance are based on the presumption that someone other than the third party providing the
assurance will ultimately pay for closure, post-closure care or corrective action, or they are
based on the calculated probability that the cost will never be incurred. Thus, if it is known that
a cost will definitely be incurred - such as closure and post-closure care - it is unlikely that any
G HOMEVWPl T0165VflPOLR001 CAS 7 7/93
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third party mechanism will be available. However, the third assurance may be available for the
purpose of ensuring that the owner will pay the ultimate costs of closure and post-closure care
even chough sufficient funds have not been accrued or set aside. As previously discussed.
insurance is inappropriate coverage for known corrective action, because insurers will not issue
policies to cover the costs of damages that have already occurred.
Governmental Accounting Standards Board (GASB)
The Governmental Accounting Standards Board (GASB) has established standards of accounting
and financial reporting for states and local governments owning and operating sanitary landfills.
The purpose of these standards is to provide guidance on how the long-term liability associated
with the cost of closure and post-closure care will be recognized and financial accounted for in
government accounting practices. These standards, while developed in response to the Subtitle
D requirements, are completely independent of EPA and state regulatory requirements for
financial assurance. They also differ somewhat from the methodology being taken by EPA.
This difference is discussed below. Yet, given the lack of definitive guidance from EPA, the
GASB standards may be the most effective guidance available to local governments at this time.
In essence these standards call for 100 percent of the cost of closure and post-closure care to be
recognized as a long term liability versus addressing these costs as incurred and as a year to year
expense. The GASB standards differ from the Subtitle D methodology for calculating the annual
cost (or set aside) for closure and post-closure care in that EPA requires the calculation of
annual cost to be based on landfill life in years, and the GASB provides for assessment of the
annual liability/cost based on actual landfill usage, i.e., the volume of landfill capacity depleted.
These standards will also significantly change how most local governments are financially
accounting for the costs of owning and operating landfills, even in the cases where enterprise
funds have been previously established. Under these standards, the cost of closure and post-
closure care will be considered a long-term liability that goes against retained earnings rather
than simply a year-to-year expense.
Conclusions
Independent of receiving guidance from EPA, local governments owning and operating sanitary
landfills need to begin planning and providing for the costs of closing landfills and maintaining
them after closure. For new facilities, this is a simple process that should automatically be
incorporated into the design, financing, and operation of the facility. For existing facilities, the
options are more complex and potentially more costly in the short term.
Planning for the costs of closure and post-closure care begins with the preparation of a plan.
The preparation of a closure/post-closure care plan is now a regulatory requirement in most of
the participating states and will be required in all states effective October 9, 1993 as a result of
Subtitle D. The actual costs of closure can vary widely depending on the physical characteristics
of the site and the landfill. Thus, rule of thumb numbers or averages serve little purpose given
nOM£\WPM0163lRPDLR001CAS
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the wide range of costs (for example, in the south, costs could range from a low of $15.000 per
acre to a high of SI20.000 or more per acre). The cost of post-closure care is also very site
dependent, but can generally be broken into some general ranges for preliminary planning
purposes. For example, thirty years of post-closure care for a small landfill developed prior to
subtitle D (i.e., without leachate collection, etc.) would be expected to cost in the range of
$1,000.000. The cost of post-closure care for a large 100 to 500 ton-per-day landfill also
developed prior to Subtitle D but possibly with limited environmental controls such as leachate
collection would be in the range of $3,000,000.
For new facilities, the best approach to be taken is to factor the cost of closure and post-closure
care directly into the calculation and establishment of facility user fees. For existing facilities.
the incremental cost of closure associated with the capacity remaining to be filled can be
incorporated into the user fee. similar to the approach to be taken for a new facility. However,
the challenge is raising the funds needed to close and care for that portion of the landfill that has
been filled prior to factoring the cost of closure into the user fees. It is this aspect of closure
that can be particularly burdensome financially to local governments. Almost any approach
taken requires the raising and setting aside of significant (in the eyes of many local governments)
dollars in a relatively short period of time. Some examples of how local governments are
approaching this need are:
• Accelerating the accrual of funds (to a trust fund) for closure and post-closure
care by establishing a higher charge for these costs within the facility user fee
• Borrowing funds to be set aside in a trust fund and incorporating the cost of
financing and repayment of debt into the facility user fee
• Establishing a one time special purpose local option sales tax
However these funds are raised, the most important point to keep in mind is that unlike
some actions for which insurance is obtained, closure and post-closure care costs will be
incurred by every landfill owner and operator. Thus, the first, and most important, step
to be taken by local government owners and operators is to provide for this cost - most
typically done through the establishment of set asides or trust funds.
The next question is whether or not local government owners have the ability to uphold their
responsibilities for closure and post-closure care. Following the logic that local governments
aren't "going anywhere," the position could be that no additional financial assurance measures
are needed to assure that local government meet their obligations. However, it should be
recognized that there is no experience with local governments providing such assurance and
upholding subsequent responsibilities. State associations (or CSCA) may wish to seek umbrella
policies that provide insurance (and thus assurance) that this obligation will be met. While there
is little history directly related to local government's track record on meeting such obligations
in the solid waste arena, the broader context of local government fiscal responsibility may be
able to serve as an adequate starting point for the state associations to negotiate actuarial rates
resulting in low costs for such insurance.
C \HOMEHVP'!OI«lFPDU»»l CAS
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SECTION 3
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SOLID WASTE FLOW CONTROL
(DESIGNATION)
James £. Kundell, Ph.D.
Deanna L. Ruffer
Roy F. Weston, Inc.
Steffney Thompson
Attorney-At-Law
Conference of Southern County Associations
Regional Solid Waste/Environmental Network
March 1993
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CONFERENCE OF SOUTHERN COUNTY ASSOCIATIONS
Regional Solid Waste/Environmental Network
Solid Waste Flow Control
(Designation)
James E. Kundell, Deanna L. Ruffer and Steffney Thompson
Flow control of solid waste is not a new concept. Solid waste has for some time been
subject to flow control regulations that require that the solid waste generated in a particular
jurisdiction be delivered to facilities designated by the local government responsible for
managing the waste. By designating the facilities to be used, the local government is better
able to plan and manage the waste. In light of recent state legislative actions that direct local
governments to develop solid waste management plans designed to ensure disposal capacity
for at least a ten year period and show how the local government plans to reduce the waste
being generated, facility designation or control of the flow of solid waste becomes an
important mechanism for managing the waste. This is particularly true when the issuance of
permits for solid waste management facilities is tied to consistency with the solid waste
management plan.
In addition to providing greater surety for local waste management efforts, local
governments have historically financed their solid waste efforts through general funds. If
additional financing was necessary, general revenue bonds backed by the taxing authority of
the local government were used. As capital costs increased, however, local governments
began turning to project revenue bonds to finance projects. Revenues obtained through user
fees insured repayment of the bonds. For this to be effective, revenue streams needed to be
identified and secured. Flow control has been key to achieving this financial security.
Today, local governments are turning increasingly to revenue bonds to finance the
capital cost of developing new solid waste management facilities. The major issue is, "How
can investors be assured that their investment will be repaid?" By adopting a flow control
ordinance, a local government gains assurance that it has the ability to properly manage solid
waste and provides certainty that revenues will be available to repay debt. The courts,
however, have rejected economic protectionism as a valid reason for restricting the flow of
solid waste. This increasingly places local governments in the position of having to find
alternatives for providing the necessary assurances regarding bond repayment in order to be
able to utilize revenue bonds to finance expensive solid waste management facilities.
The purpose of this paper is to provide county associations with information and
insights relating to flow control and alternate means for achieving the same objective (i.e.
financing) of solid waste management facilities.
B BI \CSCA\f LOW DOC
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Types of Flow Control
Essentially there are three ways that governments might desire to control the flow of
waste.
1. Restricting the flow of solid waste into a jurisdiction, also known as waste
bans. Attempts by states and local governments to restrict solid waste from a
neighboring jurisdiction or from out-of-state from entering their jurisdiction
have escalated in recent years.
2. Controlling the destination of waste generated within the jurisdiction by
directing it to specific facilities. By so doing, local governments can prevent
solid waste from leaving their jurisdiction for facilities outside or from going
to other facilities (most likely private facilities) within their borders.
3. Controlling the flow of materials recovered from the solid waste stream for
recycling purposes.
Each of these iterations of flow control has its own set of legal considerations and issues.
What is the Basic Issue Relating to Flow Control?
Flow control may be necessary for local governments to be able to finance solid waste
facilities but can be controversial as in essence it creates a monopolistic situation that is anti-
competitive. By directing the flow of waste to specific facilities, local governments are
typically attempting to provide for effective management of the waste and to assure the
receipt of revenue from tipping fees necessary for repayment of bonds.
Why is Flow Control Desirable for Local Governments?
According to the Solid Waste Association of North America, flow control serves
three major functions.1
1. Flow control allows for rational planning. If the quantity of solid waste cannot
be predicted with some degree of accuracy, it is difficult to assure adequate
capacity. Since the regulatory, design, and construction time frame for solid
waste facilities tends to be long, the reliability of the solid waste system
depends on a long term perspective of capacity needs.
2. Since local governments are charged with managing solid waste, flow control
may be necessary so that they can carry out their responsibilities. Local
governments have the responsibility for protecting public health and for the
provision of solid waste services throughout the service area, not just where it
is economically profitable.
B BIUSCAVFLOW DOC
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3. Flow control is necessary if projects are financed through revenue bonds.
Unless the investment community can be assured of a dependable supply of
solid waste (and payment of the user fee for that solid waste), local
governments may find it difficult to obtain financing for solid waste disposal
projects.
Additionally, if local governments are to meet diversion and other requirements under state
and federal law, flow control provides them with greater authority to control the waste
stream and take actions to meet their requirements. Using flow control thus provides local
governments with better accountability for the management of waste in their jurisdictions.
The following is a summary of case law not intended to provide any particular legal
advice or direction. It is simply a statement of facts extracted from case law.
The Legal Basis for Flow Control
Flow control measures usually relate to state and local law rather than federal law,
although the Commerce Clause of the U.S. Constitution affects interstate issues that relate to
flow control and is increasingly a factor in deciding flow control cases.
Restricting the Flow of Materials from Other Jurisdictions
The Commerce Clause of the U.S. Constitution has been interpreted as limiting the
states' ability to regulate commerce. City of Philadelphia v. New Jersey, 437 U.S. 617
(1978) is the landmark decision regarding the question of whether a state may regulate the
shipment of solid waste into its jurisdiction. In 1973, New Jersey enacted a waste control
law clearly aimed at prohibiting the shipment of "unusable" solid waste into the state for
landfill disposal, but allowing shipment of solid waste with some potential economic value
(e.g. through reprocessing, heat recovery, recycling, or as animal feed). Philadelphia sued
New Jersey over the statute, claiming it was an encumbrance to interstate commerce, and the
U.S. Supreme Court held that the New Jersey law was indeed in violation of the Commerce
Clause.
To determine if state regulations impose an impermissible burden on interstate
commerce, and hence violate the Commerce Clause, courts consider:
1. whether the regulation regulates evenhandedly with only "incidental" effects on
interstate commerce, or discriminates against interstate commerce either on its
face or in practical effect;
2. whether the regulation serves a legitimate local purpose; and, if so,
3. whether alternative means could promote this local purpose as well without
discriminating against interstate commerce.
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Over the past decade, courts have increasingly been faced with Commerce Clause
challenges to local or state solid waste laws which attempt to regulate the flow of waste.
Most of those cases have focused on waste import bans. Where a law is facially
discriminatory, that is, where out-of-state (or out-of-county) waste is banned from local
disposal at privately owned facilities, the courts apply a standard of "strict scrutiny" and will
uphold the local law only if a legitimate local purpose is served and there is an absence of
nondiscriminatory alternatives. The U.S. Supreme Court recently applied this test strictly to
tipping fees or surcharges that are higher for out-of-state waste than for waste generated
within the jurisdiction. Chemical Waste Management, Inc. v. Hunt, 112 S.Ct. 2009 (1992).
The U.S. Supreme Court also limited "legitimate local purposes" to include only health and
safety effects, as opposed to economic effects. Fan Gratiot Sanitary Landfill, Inc. v.
Michigan Department of Natural Resources, 112 S.Ct. 2019 (1992). Consequently, those
regulations that directly impede the flow of waste into a jurisdiction from another jurisdiction
are likely to be in conflict with the Commerce Clause.
Federal courts have addressed the "market participation" exception to the Commerce
Clause with respect to landfills. Hughes v. Alexandria Scrap Corp., 426 U.S. 794 (1976);
Reeves, Inc. v. Stake, 477 U.S. 429 (1980); and White v. Massachusetts Council of
Construction Employees, 460 U.S. 204 (1983). If the state is acting as a "market
participant," (e.g. it owns, operates, or transacts business itself), it may chose to conduct
business with whom it wishes. In other words, it may refuse to accept out-of-state waste
without violating the Commerce Clause. Thus, Delaware, which established the Delaware
Solid Waste Authority to manage all of the state's solid waste can restrict the influx of any
out-of-state waste. It appears that a local government would also be able to restrict the flow
of waste if it was a "market participant," that is it owned or operated a facility. Evergreen
Waste Systems, Inc. v Metropolitan Service District, 820 F.2d 951 (1987). The ordinance
would have to be carefully worded, however, to ensure that the jurisdiction was truly acting
as a market participant.
The Commerce Clause is interpreted as prohibiting a governmental unit from
"hoarding" all landfill facilities for its citizens, when the sites are viewed as natural
resources. Restrictions are permissible under certain conditions if facilities are viewed as
complex activities rather than natural resources (e.g. when private operators are allowed to
compete with publicly operated landfills). LeFrancois v. Rhode Island, 669 F. Supp. 1204
(D.R.I. 1987); Shayne Brothers v. District of Columbia, 592 F. Supp. 1128 (D.D.C. 1984);
and County Commissioners of Charles County v. Stevens, 299 Md. 203 (1984).
Controlling the Flow of Solid Waste Within One Service Area (Designation)
Local governments generally must receive their flow control authority from the state
government by the passage of enabling legislation Community Communications Co., Inc. v.
City of Boulder, Colorado, 455 U.S. 40, 102 S.Ct. 835, 70 L.Ed. 2d 810 (1982). Although
the police powers provided to local governments by state constitutions are often used to
support flow control measures, they may not be sufficient for this purpose. Consequently, it
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is advisable to have a clear and specific legislative grant of power from the state to
implement flow control. Of the participating states, Georgia (§ 12-8-5 l(b)), Kentucky
(§109.059), North Carolina (§130A-291(b)), Tennessee (§68-211-907), and Virginia (§15.1-
29.01) provide local governments with explicit authority to control the flow of solid waste
within their jurisdictions. The Texas legislature is considering flow control language during
the 1993 session. South Carolina and Alabama do not provide a specific legislative grant of
power from the state. In fact, a recent federal district court decision in Alabama may hinder
efforts to enact state flow control legislation. Waste Recycling, Inc., et al. v. Southeast
Alabama Solid Waste Disposal Authority, et al. (M.D. Ala. Civil Action No. 92-T-642-5,
Jan. 28, 1993).
In addition to explicit legislative authority, state laws provide a variety of other
authorities and directives to local governments that support flow control measures. An
analysis of applicable flow control provisions in North Carolina determined that some ten
provisions in state statutes were germane. These provisions include powers granted to
regional solid waste management authorities (G.S. §§ 153A-421-422); planning requirements
of local governments (G.S. §130A-294(a)(5a) and (5b)); powers of the governing board of a
designated local government (G.S. §130A-309.09(a)); contracting authority provided local
governments (G.S. §153A-299.1); local taxing authority (G.S. §153A-292; G.S. §153A-293);
and granting of exclusive local franchises (G.S. §153A-136; G.S. §160A-319).2 The
importance of these provisions in supporting flow control measures is unclear. Although
these grants of authority are necessary to implement flow control, it is arguable if they
provide additional support for instituting flow control.
Of the three types of flow control measures, controlling the flow of solid waste within
a specific service area has had the strongest legal foundation. This is the type of flow
control measure that was initially used for waste-to-energy facilities and is now being
extended for other types of waste management facilities. Recent court challenges relative to
such measures, however, have received mixed decisions. In Rhode Island, a flow control
resolution that directed commercially generated solid waste to be disposed of at a state-owned
landfill, was held unconstitutional under the Commerce Clause. Stephen D. DeVito, Jr.
Trucking, Inc. v. Rhode island Solid Waste Management Corporation, 770 F. Supp. 775
(D.R.I. 1991), affirmed 947 F.2d. 1004 (1991). The Rhode Island Solid Waste Management
Corporation, a state-created waste management agency, adopted a resolution directing all
solid waste generated or collected in Rhode Island to be disposed of at facilities licensed by
the Rhode Island Department of Environmental Management. Since the Department had no
authority to license out-of-state facilities, the effect of this requirement was to ban waste
exports. The court found that the Rhode Island regulation was unconstitutional, because the
resolution was essentially a protectionist measure. The immediate purpose and effect of the
resolution was to increase the Corporation's revenues by preventing commercially generated
waste from being transported out of the state for disposal and requiring instead that it be
deposited at a Rhode Island facility.
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In Devito Trucking, Inc. the court examined the resolution both as a neutral law (the
resolution applied to both in-state and out-of-state haulers), and as a facially discriminatory
law (the resolution favored a state facility over competing out-of-state facilities/or haulers).
The court applied a strict scrutiny standard and concluded that the regulation was "an
essentially protectionist measure," and issued a preliminary injunction to prohibit
enforcement of the regulation. As part of strict scrutiny, the court examined whether the
regulation advanced a legitimate local purpose that could not be adequately served by
reasonable nondiscriminatory alternatives, and analyzed the legislatively-mandated purposes
found in the preamble of the flow control regulation. Those purposes were to:
1. maximize resource recovery and recycling;
2. protect public resources and health;
3. counteract illegal disposal of solid waste;
4. reduce cleanup liability;
5. reduce traffic flow; and
6. meet long-term planning needs.
The court found that none of these purposes was served by the flow control legislation.
Further, the two recent U.S. Supreme Court decisions in Chemical Waste Management and
Fan Gratiot that were decided after DeVito Trucking, Inc. suggest that only health effects (as
opposed to economic effects) can provide a legitimate local purpose.
In another recent case, a court made a distinction between disposal control measures
and those that regulate the processing of waste. Filiberto Sanitation, Inc. v. New Jersey
Department of Environmental Protection, 857 F.2d 913 (3rd. Cir. 1988). In this case, a
court held valid a resolution promulgated under the New Jersey Solid Waste Management
Act, which required deposit of waste collected in a county at a transfer station for processing
and subsequent disposal. The rule was challenged by a local hauler who wanted to continue
transporting to out-of-state landfills the waste he collected in the county. The court found the
rule was not per se discrimination, because the rule did not have a protectionist purpose (the
court cited the purposes as proper disposal, reduced traffic flow, long-term waste planning
certainty, put-or-pay contract certainty, and developing waste management alternatives as
available landfill space diminishes). Because Filiberto, the waste hauler, failed to show a
discriminatory purpose to the rule, as well as a discriminatory effect, the court did not find
the rule unconstitutional under the per se discrimination test.
In addition, the court analyzed and found the rule valid under the balancing test, as an
evenhanded regulation affecting similarly in-state haulers and out-of-state haulers. The court
never reached the issue of balancing local benefits against burdens on interstate commerce
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because it concluded that the waste control rule placed "no cognizable burdens on interstate
commerce." The court reasoned that, because waste from the processing center is sent to
out-of-state landfills, "the transfer station's trash will flow into interstate commerce, just as
that trash did before the adoption of the Rule." Thus, the waste was not removed from
commerce. This case may have been decided differently after the Chemical Waste
Management and Fort Gratiot cases because the transfer station does compete with out-of-
state landfills for the solid waste initially and there is no public health reason presented to
justify the rule.
These cases show how difficult it is for flow control measures to withstand scrutiny
under the Commerce Clause. Local governments adopting flow control ordinances, even
with explicit state authority to do so, must be very careful in the wording of the ordinance or
it will likely be struck down.
Controlling the Flow of Recovered Materials
Flow control as it relates to recovered materials is much more questionable since
those materials, depending on what people do with them, may be private property. The
Fourteenth Amendment of the U.S. Constitution provides that property shall not be taken by
a state (or by extension, its subdivisions) without "due process," and accordingly "just
compensation." Most state constitutions provide similar protection.
The issue is one of ownership of the recovered material. Flow control ordinances can
determine the destination of recyclables in the waste stream or recovered materials which
have been voluntarily handed over to the local government but they can not require that a
private individual (company) give recyclables only to them.3 Consequently, local
government flow control ordinances should not:
1. prohibit collectors of solid waste from recycling materials;
2. limit access to recyclable materials; or
3. restrict the rights of the generator to donate or sell his/her recovered materials.
The case law relating to the control of flow of recyclables is limited. In Waste
Management of the Desert, Inc., et al.t v. Palm Springs Recycling Center, Inc. (9 Cal. App.
4th 239), a California court ruled that cities may not grant exclusive contracts for the
collection and processing of commercial recyclables. This case, however, is now on appeal
to the California Supreme Court and does not establish a precedent for other states.
The issue of ownership of recovered materials should be addressed in solid waste
management contracts the local government enters into. The contract should identify if the
recovered materials, once collected, belong to the hauler or to the local government.
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Reaching an understanding prior to signing a contract can result in avoiding unnecessary
litigation.
In an effort to clarify the proper range for flow control provisions, some states have
specifically prohibit the application of flow control restrictions to recovered materials.
Virginia provides that no flow control ordinance shall apply to recyclable materials (i.e.
those materials that have been separated from the solid waste stream to be used in manufac-
turing another product) (§ 15.1 -28.0l(c)(2)). Tennessee prevents a region or solid waste
authority from restricting the movement of recovered materials (§68-21 l-814(b)(5)).
Georgia's solid waste law contains a broad prohibition concerning the restriction of recovered
materials. The statute prohibits solid waste authorities, counties or cities from entering
agreements or passing ordinances "providing for any rights with respect to recovered
materials or substances...contained in solid waste" which can be separated for recycling prior
to pickup (§12-8-5 l(b)). North Carolina's solid waste law currently limits a regional solid
waste authority's ability to require that recyclable material be delivered to a certain facility to
recyclables which have already been transferred to the authority (§153A-427(24)). The
North Carolina Legislative Research Commission on Solid Waste Control and Disposal
Issues, perhaps finding this language not strong or broad enough, recommends language this
legislative session to clarify that flow control does not include materials yet released for
disposal.
The ultimate resolution of the taking issue is uncertain with respect to flow control
statutes that specifically apply to recyclables. To put a flow control ordinance on as firm a
foundation as possible, the local government should utilize careful planning, identify any
state legislation needed, strictly adhere to all procedural requirements, and specifically
identify ownership of recovered materials collected in any contracts agreed to by the local
government. Attempting to minimize the impacts on existing recyclers, possibly by
negotiating with potentially affected parties prior to the drafting of the flow control ordinance
may prove beneficial.4
Conclusions
The uncertainty surrounding flow control will eventually be cleared up by the courts
or by Congress with the reauthorization of RCRA. Until then, guidance must be tempered
with reservations. It is helpful, however to separate the types of flow control in order to
determine more accurately what steps local governments might take.
Restricting the Flow of Materials from Other Jurisdictions
The courts have sent a clear message that restricting the flow of solid waste into a
jurisdiction is contrary to the intent of the Commerce Clause of the U.S. Constitution and
will not be supported. Even if the waste comes from a neighboring jurisdiction rather than
another state, the courts have used the same reasoning. Consequently, efforts to prevent the
flow of materials into a jurisdiction are likely to be thrown out.
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The major exception to this is when the local government is a "market participant",
(i.e., facility owner). By owning the solid waste management facility, the local government
can choose to accept or reject waste coming from other jurisdictions. Consequently, market
participation is a key factor in controlling the movement of solid waste.
Recommendations
• The ordinance should not interfere with the interstate movement of solid waste
unless the local government owns the solid waste disposal facility and acts as a
market participant, not a market regulator.
Controlling the Flow of Solid Waste Within One Service Area (Designation)
There are basically two reasons why local governments have wanted to control the
flow of solid waste within a service area. These are:
1. to manage the use of available management facilities; and
2. to provide assurance of the ability to repay debt.
To properly control the use of available management facilities and to assure that
adequate capacity is available to meet needs, local governments depend on flow control
measures. The purpose of such measures is to explicitly designate the facility to which solid
waste is to be delivered and/or regulate the rate of use of facility capacity. Of the three
types of flow control measures, controlling the flow of solid waste within a specific service
area has had the strongest legal foundation. Recent court cases, however, have resulted in
mixed decisions.
One unquestionable approach local governments can take to direct the flow of waste
to specific facilities is to have a direct role in solid waste collection, either through
contractual relationships, franchises, or actual service provision. It is generally accepted that
once ownership of solid waste is transferred from the generator through use of a provided
service (i.e., setting out solid waste for collection) that the local government has the right to
determine how the collected material will be managed.
To provide assurance of debt repayment without flow control, local governments
should: 1) consider alternative approaches to providing the necessary assurance of the ability
to repay bonds; and/or 2) consider mechanisms other than revenue bonds when financing
solid waste facilities.
To assess the ability to repay bonds without flow control, local governments must use
the same methodologies used by the private sector in making calculated business decisions.
First, a sound waste stream analysis is require to determine the types of materials in the
stream and to identify management options appropriate to meet needs. Second, a market
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analysis is necessary to determine if competition exists and, if so, the nature of that
competition.
Sound planning can provide insights and understanding of project conditions necessary
to secure project revenue financing but may still require that the debt be backed by the taxing
authority of the local government. However, local government backing of the debt does not
have to change the intent of having project revenue be the primary source of revenue for
repayment of the debt. Rather, this "deep pocket" simply provides investors with a comfort
level that repayment of bonds is assured.
In some cases, local governments may wish to consider alternative financing options
such as (Note: not all of these options may be usable in all states):
1. financing projects through direct bank loans;
2. issuing warrants (bonds) secured by the full faith and credit of the local
governments;
3. financing projects through state loans secured by the full faith and credit of the
local governments.
Another approach, which requires state authorization, is to levy a tax or user fee for
the establishment and operation of solid waste management facilities. This allows local
governments to raise the funds needed to repay debt and operate the facilities and provides
the taxpayers with the right to use the facility. Taxpayers choosing to use another facility in
essence pay twice for solid waste management services. Local government authorization to
levy such taxes has been provide by the State of North Carolina.
With the current posture of the courts, it is difficult to recommend flow control as an
option to be used by local governments to designate which management facilities waste must
be taken to. If local governments decide, however, that a flow control ordinance is
necessary, the following points should be heeded.
Recommendations
• Local governments should have a direct role in solid waste collection, either
through contractual arrangements, franchise agreements, or the direct
provision of services.
• The ordinance must be based on protection of public health and safety and
must show how it is not merely for economic protectionism purposes.
• The major purpose of the ordinance should be the effective management of
solid waste within the service area.
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• The ordinance should be based on the actions required of local governments by
federal and state law to plan for the management of solid waste in order to
assure capacity for at least a ten year period and to reduce the amount of waste
destined for disposal in solid waste facilities.
• The ordinance should not deprive anyone currently in business from continuing
to carry out that business.
Controlling the Flow of Recovered Materials
Flow control of recovered materials is a questionable measure since those materials,
depending on what people do with them, may be private property. In other words, the
fundamental issue is one of ownership of the recovered material. Flow control ordinances
can determine the destination of recyclables in the waste stream or recovered materials which
have been voluntarily handed over to the local government but they can not require that a
private individual (company) give recyclables only to them.
Similar to the situation with solid waste, one unquestionable approach local governments can
take to direct the flow of recovered materials is to have a direct role in the collection of
recovered materials. As with solid waste, once materials are set out for collection by a
publicly provided (either through contractual relationships, franchises, or actual service
provision) service the local government has the right to determine how the collected material
will be managed.
Recommendations
• The ordinance should not require anyone to give their recyclable material to
the local government. If the recyclables are voluntarily given to the local
government or once they are in the waste stream, the local government has
assumed ownership and can manage them as it sees fit. The ordinance can
require, however, that certain materials be separated for recycling.
• The ordinance should not deprive anyone currently in business from continuing
to carry out that business. The ordinance should not limit access to recyclable
materials; restrict the rights of the generator to donate or sell recovered
materials; nor collectors to recycle materials.
• The issue of ownership of recovered materials should be addressed in solid
waste management contracts the local government enters into. The contract
should identify if the recovered materials, once collected, belong to the hauler
or to the local government.
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Good solid waste management planning that identifies options for managing the
various components of the waste stream may decrease the need for a flow control ordinance.
Caution and careful preparation is called for if a local government chooses to pursue flow
control. The local government should also proceed with the understanding that the ordinance
is likely to be challenged.
References
1. H. Lanier Hickman, Jr. "Solid Waste Flow Control," Municipal Solid Waste News.
October 1992, pg. 4.
2. Nancy E. Scott, North Carolina Assistant Attorney General, "Statutes Applicable to
Solid Waste Flow Control Memorandum" to Bill Meyer, Director of Solid Waste
Management Division, March 8, 1991.
3. Steve Levetan. "Can Government Dictate Who Handles Recyclables?" Recycling
Today. January 15, 1991, pg. 8.
4. Andrew E. Mishkin. "Flow Control of Recyclables," Municipal Solid Waste News.
April 1992, pp 12-13.
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SOLID WASTE FLOW CONTROL
WHAT ARE THE OPTIONS FOR LOCAL GOVERNMENTS
Article for Publication
B \C02\CSCA\AGDLROOl JPA
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Solid Waste Flow Control (Designation):
What are the Options for Local Governments?1
James E. Kundell, Deanna L. Ruffer and Steffney Thompson2
Flow control is not a new concept. In many states, solid waste has for some time
been subject to regulations that require that waste generated in a particular jurisdiction be
delivered to facilities designated by the local government responsible for managing it. By
designating the facilities to be used, local government is better able to plan and manage the
waste.
In addition, as capital costs increase local governments have begun to turn to project
revenue bonds to finance projects. Revenues obtained through user fees insure repayment of
the bonds. For this to be effective, revenue streams need to be identified and secured. Flow
control has been key to achieving this financial security. The courts, however, have rejected
economic protectionism as a valid reason for restricting the flow of solid waste. This
increasingly places local governments in the position of having to find alternatives for
providing the necessary assurances regarding bond repayment in order to utilize revenue
bonds to finance expensive solid waste management facilities.
By directing the flow of waste to specific facilities, local governments are typically
attempting to provide for effective management of the waste and to assure the receipt of
revenue from user fees necessary for repayment of bonds.
Why is Flow Control Desirable for Local Governments?
According to the Solid Waste Association of North America, flow control serves
three major functions.
1. Flow control allows for rational planning. If the quantity of solid waste cannot
be predicted with some degree of accuracy, it is difficult to assure adequate
capacity. Since the regulatory, design, and construction time frame for solid
waste facilities tends to be long, the reliability of the solid waste system
depends on a long term perspective of capacity needs.
1 This paper was produced for the Conference of Southern County Associations (CSCA)
under a grant from the U.S. Environmental Protection Agency to Roy F. Weston, Inc.
2 James E. Kundell is Senior Associate at the Carl Vinson Institute of Government at the
University of Georgia and a Senior Advisor to Roy F. Weston, Inc., Deanna L. Ruffer is
Project Director for Roy F. Weston, Inc. and Steffney Thompson is an attorney working on
the CSCA project.
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2. Since local governments are charged with managing solid waste, flow control
may be necessary so that they can carry out their responsibilities. Local
governments have the responsibility for protecting public health and for the
provision of solid waste services throughout the service area, not just where it
is economically profitable.
3. Flow control is necessary if projects are financed through revenue bonds.
Unless the investment community can be assured of a dependable supply of
solid waste (and payment of the user fee for that solid waste), local
governments may find it difficult to obtain financing for solid waste disposal
projects.
In addition, local governments are often responsible for land use decisions. As such,
they must anticipate the economic and environmental consequences of changing land uses
within their jurisdiction. Availability of and impact on water, sewer, drainage, roads, schools,
and parks are generally considered while deliberating a proposed land use change. Solid
waste collection and disposal should also be considered in this process. Local governments
often assess impact fees for such services to assure the current taxpayers that there is no
undue burden placed on them for changing the land use to benefit the property owner. In this
context, solid waste collection and disposal should be viewed as another utility, and the land
owner would pay for the obligation placed on the utility.
Types of Flow Control
Essentially there are three ways that governments might desire to control the flow of
waste.
1. Restrictin£ the flow of solid waste into a jurisdiction, also known as waste
bans. Attempts by states and local governments to restrict solid waste from a
neighboring jurisdiction or from out-of-state from entering their jurisdiction
have escalated in recent years.
2. Controlling the destination of waste generated within the jurisdiction by
directing it to specific facilities. By so doing, local governments can prevent
solid waste from leaving their jurisdiction for facilities outside or from going to
other facilities (most likely private facilities) within their borders.
3. Controlling the flow of materials recovered from the solid waste stream for
recycling purposes.
Each of these iterations of flow control has its own set of legal considerations and issues.
Legal uncertainty shrouds flow control measures. The uncertainty will eventually be
cleared up by the courts or by Congress with the reauthorization of Resource Conservation
-------
and Recovery Act. Until then, guidance must be tempered with reservations. It is helpful,
however, to consider each type of flow control separately in order to determine more
accurately the options local governments might have.
Restricting the Flow of Materials from Other Jurisdictions
The courts have sent a clear message that restricting the flow of solid waste into a
jurisdiction is contrary to the intent of the Commerce Clause of the U.S. Constitution and will
not be supported. Even if the waste comes from a neighboring jurisdiction rather than
another state, the courts have used the same reasoning.
The major exception to this is when the local government is a "market participant,"
(e.g. facility owner). By owning the solid waste management facility, the local government
can choose to accept or reject waste coming from other jurisdictions. Consequently, market
participation is a key factor in controlling the movement of solid waste.
Recommendations for Restricting the Flow of Materials from Other Jurisdictions
• Regulatory action should not interfere with the interstate movement of solid
waste unless the local government owns the solid waste disposal facility and
acts as a market participant, not a market regulator.
Controlling the Flow of Solid Waste Within One Service Area (Designation)
As previously discussed, there are basically two reasons why local governments have
wanted to control the flow of solid waste within a service area: (1) to manage the use of
available management facilities; and (2) to provide assurance of the ability to repay debt.
The purpose of such measures is to explicitly designate the facility to which solid waste is to
be delivered and/or regulate the rate of use of facility capacity. Of the three types of flow
control measures, controlling the flow of solid waste within a specific service area has had
the strongest legal foundation. Recent court decisions, however, have resulted in mixed
decisions.
One unquestionable approach local governments can take to direct the flow of waste to
specific facilities is to have a direct role in solid waste collection, either through contractual
relationships, franchises, or actual service provision. It is generally accepted that once
ownership of solid waste is transferred from the generator through use of a provided service
(e.g. setting out solid waste for collection) that the local government has the right to
determine how the collected material will be managed.
With the current posture of the courts, it is difficult to recommend flow control as an
option to be used by local governments to designate which management facilities waste must
be taken to. If local governments decide, however, that a flow control ordinance is necessary,
the following points should be heeded.
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Recommendations for Controlling the Flow of Solid Waste Within One Service Area
• Local governments should have a direct role in solid waste collection, either
through contractual arrangements, franchise agreements, or the direct provision
of services.
• The ordinance must be based on protection of public health and safety and
must show how it is not merely for economic protectionism purposes.
• The major purpose of the ordinance should be the effective management of
solid waste within the service area.
• The ordinance should be based on the actions required of local governments by
federal and state law to plan for the management of solid waste in order to
assure capacity for at least a ten year period and to reduce the amount of waste
destined for disposal in solid waste facilities.
• The ordinance should not deprive anyone currently in business from continuing
to carry out that business.
Controlling the Flow of Recovered Materials
Flow control of recovered materials is a questionable measure since those materials,
depending on what people do with them, may be private property. In other words, the
fundamental issue is one of ownership of the recovered material. Flow control ordinances can
determine the destination of recyclables in the waste stream or recovered materials which
have been voluntarily handed over to the local government but they can not require that a
private individual (company) give recyclables only to them.
Similar to the situation with solid waste, one unquestionable approach local
governments can take to direct the flow of recovered materials is to have a direct role in the
collection of recovered materials. As with solid waste, once materials are set out for
collection by a publicly provided service (i.e. either through contractual relationships,
franchises, or actual service provision) the local government has the right to determine how
the collected material will be managed.
Recommendations for Controlling the Flow of Recovered Materials
• The ordinance should not require anyone to give their recyclable material to the
local government. If the recyclables are voluntarily given to the local
government or once they are in the waste stream, the local government has
assumed ownership and can manage them as it sees fit. The ordinance can
require, however, that certain materials be separated for recycling.
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• The ordinance should not deprive anyone currently in business from continuing
to carry out that business. The ordinance should not limit access to recyclable
materials; restrict the rights of the generator to donate or sell recovered
materials; nor collectors to recycle materials.
• The issue of ownership of recovered materials should be addressed in solid
waste management contracts the local government enters into. The contract
should identify if the recovered materials, once collected, belong to the hauler
or to the local government.
Good solid waste management planning that identifies options for managing the
various components of the waste stream may decrease the need for a flow control ordinance.
Caution and careful preparation is called for if a local government chooses to pursue flow
control. The local government should also proceed with the understanding that the ordinance
is likely to be challenged.
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SECTION 4
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REGULATORY IMPACT ASSESSMENT
FOR SOLID WASTE MANAGEMENT
UNDER THE CLEAN AIR ACT, AS AMENDED IN 1990
Purpose of the Act
The Clean Air Act, initially passed in 1967, provided the legal foundation for a national program to control
air pollution. The federal strategy to accomplish this goal was centered around a basic set of National Ambient Air
Quality Standards. The standards are based on scientific determinations of the threshold levels of air pollution.
In areas where ambient air quality is below threshold levels, the Act's objective is to prevent the future deterioration
of air quality. In areas where air pollution exceeds the standards (i.e. "non-attainment areas"), the purpose of the
Act is to authorize efforts to reduce air emissions, so as to improve air quality and achieve compliance with the
National Ambient Air Quality Standards. No federal permit system was established by the Clean Air Act prior to
1990.
In practice, the system of air quality standards has proved to be extremely complicated to implement and
regulate. Most of the responsibility for achieving compliance with air quality standards was placed on the states,
which were required to prepare a State Implementation Plan (SIP). Despite the preparation of legally binding SIPs
and the development of numerous other control programs since the 1960s, nonattainment problems have persisted,
particularly with respect to ozone, carbon monoxide and particulate matter. For example, in the area of ozone
nonattainment, there are 16 metropolitan areas designated as "serious" nonattainment areas, 8 areas designated as
"severe", and 1 area designated as having an "extreme" ozone pollution problem. All CSCA States have at least
one area designated as a nonattainment area.
The Clean Air Act Amendments of 1990 substantially alter the framework of the Clean Air Act by adding
new titles to the Act and, in some cases, making changes to the old law.
Impact on Solid Waste Management Practices
The Clean Air Act Amendments of 1990 impact several elements of an integrated solid waste management
system. Areas of impact include.
Combustion of Solid Waste
Landfills
Materials Recovery and Processing
Collection of Solid Waste and Recyclables
Requirements related to solid waste management are highlighted in the following paragraphs.
Combustion of Solid Waste
Municipal solid waste (MSW) combustion is significantly affected by the Clean Air Act in four ways.
• Establishes emission limitations and operating requirements for new and existing waste
incinerators (both large and small).
Emission limits for municipal waste combustion units (including medical waste incinerators.
commercial/industrial incinerators, and MSW facilities) have been set for units with capacities greater than
250 tons/day Regulated air pollutants produced by solid waste combusters include acid gases, particulate
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matter, opacity, metals, organics, carbon monoxide, and nitrogen oxides. Separate standards and rules to
regulate medical waste incinerators, industrial and commercial incinerators, and MSW combustion facilities
with throughput greater than 40 tons per day but less than 250 tons per day are currently being prepared
by EPA. Other solid waste incinerators (including small MSW combusters with capacity less than 39
tons/day, residential incinerators, agricultural waste incinerators, wood waste incinerators, and construction
and demolition waste incinerators) are being evaluated by EPA and could be subject to Clean Air Act
emission guidelines and performance standards in the future.
• Requires use of Maximum Achievable Control Technologies (MACT) to minimize air pollution
from solid waste combustion facilities.
Title III of the Clean Air Act, as amended in 1990, sets New Source Performance Standards and commands
EPA to impose tight emission controls in accordance with a new two-phase strategy to control "point
source" air pollution. The first phase is to be based on technology standards and will require companies
to install the Maximum Achievable Control Technology (M ACT). The performance standards will require
the maximum achievable degree of reduction in emissions of listed air pollutants. Existing facilities will
also be responsible for meeting more stringent standards that require technology controls equivalent to the
average of those presently employed at the most tightly controlled 12 percent of existing facilities.
As a second phase of control, after MACT standards have been met, certain facilities may be subject to
still further regulation in situations where the remaining emissions will create concentrations of air toxics
which might be harmful to exposed individuals. This feature of the regulatory program has little immediate
relevance to the implementation of extensive new regulatory controls under MACT.
• Restricts siting of new solid waste combustion facilities in non-attainment areas by requiting that
the facility: 1) realize the Lowest Achievable Emissions Rate (LAER); and 2) obtain emission
off-sets for non-attaining pollutants.
Non-attainment requirements apply to any areas which are in violation of any ambient air quality standard.
Title I, Section 173 of the Clean Air Act, as amended in 1990, relates to the construction of new sources
of air pollution in non-attainment areas. The new source review requirements for proposed projects apply
to any new major source or to any modification of an existing major source causing more than a tic munmin
increase in emissions. The principal requirements which apply to solid waste combustion projects in non-
attainment areas are that the proposed project must obtain construction permits, must satisfy technology
standards reflecting the lowest achievable emission rate (LAER), and must obtain offsets representing
emission reductions from other sources.
• Requires owners/operators of solid waste combustion facilities to apply for a permit to operate.
Title V, Section 502 of the Clean Air Act, as amended in 1990, requires all stationary facilities that emit
regulated air pollutants to obtain an operating permit by 1995. This new permit program will require all
point source owners/operators to conduct initial air quality baseline and emission testing to ensure that the
source can meet applicable emission limits. In addition, the program will require monitoring, record-
keeping, and reporting activities. The permit will contain federally enforceable conditions with which the
source must comply.
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Landfills
• Requires both operating and dosed facilities to recover or destroy landfill gas (methane)
produced as part of New Source Performance Requirements.
Title 1, Section 111 of the Clean Air Act, as amended in 1990, identify landfills as a category of facility
needing to comply with New Source Performance Standards (NSPS). This is the first direct federal
regulation of air emissions from landfills. New facilities are required to control landfill gas using the best
demonstrated technology (BDT). Specifically, landfill owners/operators must collect methane gas and
either recycle, use, or incinerate it. A permit related to the recovery or destruction of methane gas from
the landfill must be obtained. The permits generally will be issued by state agencies. The permits will
establish detailed requirements governing emissions from the source and related activities, such as
monitoring, record-keeping, and reporting.
• Municipal solid waste landfills must ensure that the facilities do not violate any applicable
requirements developed under the State Implementation Plan (SIP).
RCRA Subtitle D regulations require that owners/operators of solid waste facilities do not violate any
applicable requirements developed under State Implementation Plans (SIPs). The SIP may include
variances, permits, or exemptions for burning agricultural wastes, silvicultural wastes, land-clearing debris,
diseases trees, or debris from emergency clean-up operations. Routine burning of waste is banned in all
cases, and additional restrictions may be specified in the SIP.
Materials Recovery and Processing
• Requires all ozone-depleting refrigerants (i.e. chlorojluorocarbons, halon, and
hydrochlorofluorocarbons) in appliances, machines, and other goods, such as refrigerators and
air conditioners, to be recovered prior to disposal.
Title VI, Section 608 of the Clean Air Act, as amended in 1990, establishes a National Recycling and
Emission Reduction Program for ozone-depleting refrigerants. Under the rule, which will be phased in
over 18 months, all ozone-depleting refrigerants in appliances, machines, and other goods must be removed
and recovered from those materials prior to disposal.
Collection of Solid Waste and Recyclable?
• In serious, severe and extreme ozone non-attainment areas, requires fleets of 10 or more
vehicles that are fueled or are capable of being fueled at a central location to begin using clean
fuels, such as metlianol, ethanol, other alcohols, reformulated gasoline, natural gas, liquefied
petroleum gas, or electricity.
Titles I and II of the Clean Air Act, as amended in 1990, addresses "mobile sources" of air pollution,
specifically motor vehicles. The amendments require that clean fuel fleet programs be instituted in non-
attainment metropolitan areas. The schedule for implementation mandates that 50 percent of new heavy-
duty trucks, including satellite packers, light-duty recycling trucks, and refuse fleet service vehicles, must
use clean fuels by 1998.
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Future Trends
The Clean Air Act, as amended in 1990, will have far-reaching effects. Implementation of programs
legislated by the Act will not be easy. Nor will it be undertaken swiftly. Many of the regulatory requirements will
take years to fully put into effect. In fact, these statutory authorities have set the stage for repeated waves of
regulatory effort that will continue until the Clean Air Act's goals are met.
The issuance of regulations pertaining to solid waste combustion serve as an example. In February 1991,
EPA issued emission guidelines and performance standards for MSW Combustion Facilities that burn greater than
250 tons per day. Separate standards and rules are currently being prepared for medical waste incinerators, and
industrial/commercial incinerators, and MSW combustion facilities with throughput between 40 and 250 TPD,. A
third grouping of facilities, which fall into the category of "other solid waste incinerators", could also be subject
to Clean Air Act emission guidelines and performance standards in the future. "Other solid waste incinerators"
include:
• small MSW combusters (throughput less than 40 tons per day);
• residential incinerators;
• agricultural waste incinerators;
• wood waste incinerators, including air curtain destruction;
• construction and demolition waste incinerators;
• crematories; and
• petroleum-contaminated soil treatment facilities.
Overview of Likely Non-Attainment Areas in CSCA States
Areas Likely to be in Non-Attainment
Categories
ALABAMA
Montgomery, AL
ARKANSAS
Memphis, TN-AR-MS
FLORIDA
Tampa-St Petersburg-Clearwater
Miami -Ft Lauderdale
GEORGIA
Atlanta
KENTUCKY
Evansville, IN-KY
Lexington-Fayette, KY
Livingston, KY
Owensboro, KY
Paducah, KY
Edmonson Co. KY
Cincinnati. OH-KY-IN
Louisville, KY-IN
Huntmgton-Ashland, WV-KY-OH
Ozone
Rating
Marginal
Moderate
Marginal
Moderate
Serious
Marginal
Marginal
Marginal
Marginal
Marginal
Moderate
Moderate
Moderate
Serious
Carbon
Monoxide
Rating
Moderate
Particulate
Matter
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Overview of Likely Non-Attainment Areas in CSCA States (Continued)
Areas Likely to be in Non-Attainment
Categories
MISSISSIPPI
Memphis, TN-AR-MS
NORTH CAROLINA
Fayelteville, NC
Charlotte-Gastonia-Rock Hill, NC-SC
Greensboro-Winson-Salem-High Point, NC
Raleigh-Durham, NC
SOUTH CAROLINA
Greenville-Spartanburg, SC
Charlotte-Gastonia-Rock Hill, NC-SC
TENNESSEE
Johnson City-Kingsport-Bristol, TN-VA
Knoxville, TN
Memphis, TN-AR-MS
Nashville, TN
TEXAS
Dallas-Forth Worth, TX
Beaumont-Port Arthur, TX
El Paso, TX
Houston-Galveston-Brazoria, TX
VIRGINIA
Johnson City-Kingsport-Bristol, TN-VA
Norfolk-Virginia Beach-Newport News. VA
Richmond-Petersburg, VA
Smyth Co, VA
Washington, DC-MD-VA
WEST VIRGINIA
Greenbriar Co, WV
Charleston, WV
Huntington-Ashland, WV-KY-OH
Parkersburg-Marietta, WV-OH
Stuebenville-Weirton, OH-WV
Brook Co, WV
Ozone
Rating
Moderate
Marginal
Moderate
Moderate
Moderate
Marginal
Moderate
Marginal
Marginal
Moderate
Moderate
Moderate
Serious
Serious
Severe
Marginal
Moderate
Moderate
Moderate
Serious
Marginal
Moderate
Serious
Serious
Carbon
Monoxide
Rating
Moderate
Moderate
Moderate
Moderate
Moderate
Moderate
Serious
Particulate
Matter
,
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REGULATORY IMPACT ASSESSMENT
FOR SOLID WASTE MANAGEMENT
UNDER THE SAFE DRINKING WATER ACT, AS AMENDED IN 1986
Purpose of the Act
The Safe Drinking Water Act was passed by Congress in 1974 and has since been amended several times,
most recently in 1986. The purpose of the Act is to make sure that the drinking water supplied to the public is safe
and Tit for consumption. To achieve this purpose, the Act establishes national drinking water standards, which are
periodically updated in the federal register. These federal standards include maximum contaminant levels (MCL)
and/or treatment techniques for various contaminants found in water supplies. The federal drinking water program
was designed by the EPA to be delegated to the states for implementation on a day-to-day basis.
The requirements of the Safe Drinking Waster Act apply to all Public Water Systems (PWS), which are
defined as systems which serve piped water to at least 25 people or 15 service connections for at least 60 days per
year. There are three major types of requirements in the Safe Drinking Water Act:
1) Sampling and Reporting;
2) Record Keeping; and
3) Public Notification of Violations
While these apply primarily to Public Water Utilities, the requirements do have some implications for solid waste
management systems.
Impact on Solid Waste Management Practices
The Safe Drinking Water Act, as amended in 1986, impacts the following elements of an integrated solid
waste management system:
Landfill Leachate and Wastewater, (including condensate, washwater, and residue from
Oil/Water Separators)
Landfills that have Detected Ground water Contamination
Landfill Siting and Design
Requirements related to solid waste management are highlighted in the following paragraphs.
Landfill Leachate/Wastewater Treatment
• Tlie Safe Drinking Water Act identifies maximum contaminant levels (MCLs)for drinking water
supplies. At a minimum, these standards must be met prior to discharge of landfill leachate
and/or wastewater from on-site treatment systems.
MCLs are the standards against which surface and ground water samples are judged for compliance with
the Safe Drinking Water Act. If wastewater is to be directly discharged to a waterway, then the landfill
owner/operator must obtain a NPDES permit (under the Clean Water Act) and contaminant levels must
meet the MCL or a more stringent level set by the state. If wastewater is to be treated on-site and then
discharged to a publicly-owned treatment plant, a pre-treatment permit (also administered under the Clean
Water Act) would be required instead. In this case, effluent standards are established by local sewer use
ordinances and local and/or state agencies
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Contamination from Landfills
• To determine whether a landfill is responsible for groundwater contamination, the
owner/operator is required to sample both upgradient and downgradient groundwater in
accordance with RCRA Subtitle D. If a downgradient sample shows constituents above the
maximum contaminant level (MCL), corrective action is necessary. If MCLs have not been
established for a particular constituent, EPA requires that a determination of statistical
difference between downgradient samples and upgradient samples (background concentration)
act as the trigger for corrective action.
RCRA Subtitle D regulations require that groundwater monitoring systems be installed at landfills. These
systems are used to sample groundwater and determine whether contamination has occurred. The need for
corrective action is determined by a "groundwater trigger level" that corresponds to established MCLs.
IF MCLs are not available for a particular constituent, statistical methods are used to determine the need
for remedial investigation.
• To protect human health and the environment, surface and/or ground water contamination
resulting from landfills must be cleaned up to maximum contaminant levels (MCLs). If an
MCL has not been established, the level of clean-up is determined by the State. Similarly, the
design of new landfills must ensure compliance with MCLs.
When a landfill has been the cause of surface or ground water contamination that threatens a drinking water
supply, the contamination must be cleaned up to MCL standards (Section 1412), when MCLs for exist for
the constituent found. In addition, the landfill owner/operator must notify the regulatory agency charged
with administering the National Safe Drinking Water Program.
The design of new landfills is also strictly regulated by RCRA Subtitle D to ensure that MCLs are not
exceeded during the course of landfill operation. Because leachate from all landfills is considered to be
a potential cause of groundwater contamination, RCRA Subtitle D regulations require that liners and
leachate collection systems be required at new facilities. RCRA Subtitle D also requires that existing
facilities minimize the potential for contamination after closure by requiring design standards for final
cover.
Landfill Siting
• Landfill siting must be in confonnance with groundwater resource, wellhead protection and/or
watershed protection plans, as specified by the state or local government.
In areas where drinking water is obtained from surface water, public water systems must establish a
watershed control program. In areas where drinking water is obtained from ground water, states and local
governments are encouraged to develop a groundwater protection plan Oftentimes, these programs and/or
plans will prohibit development that could adversely affect water quality within specified areas. Similarly,
wellhead and watershed protection plans restrict certain land uses within a specified area around municipal
water supply wells and sources. This area can range from 100 feet in a confined system, such as the
coastal plain, to several thousand feet in karstic hydrologic environments (i.e. a region with dissolvable
bedrock such as limestone or dolomite)'. Landfill development within these specified wellhead protection
and watershed protection areas is severely limited in almost all cases
1 Both coastal plain and karstic geology arc evident in each state in the region States with predominantly
karslic conditions include West Virginia, Kentucky, Tennessee. Alabama, and Florida.
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Future Trends
Protection of drinking water supplies will remain a priority for regulatory agencies in the years ahead. This
protection is likely to be proactive, taking the form of watershed, wellhead, and groundwater protection plans.
These plans will pose limits on the land area considered suitable for development of solid waste management
facilities.
In addition, the implementation of RCRA Subtitle D regulations, which requires surface/ground water
monitoring systems, is likely to uncover previously undetected indications of contamination that has resulted from
past landfilling. If contamination is discovered, local governments will need to clean up contamination to Safe
Drinking Water levels, as defined by the EPA and/or each state.
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REGULATORY IMPACT ASSESSMENT
ON SOLID WASTE MANAGEMENT
UNDER THE CLEAN WATER ACT, AS AMENDED IN 1987
Purpose of the Act
The Clean Water Act, as amended in 1987, provides the legal foundation for a national program to control
water pollution. Congress1 strategy to accomplish this goal has evolved into a federal and state system of standards,
permits, and enforcement. The system is designed to regulate two primary sources of water pollution: "point"
sources and "non-point" sources. A "point" source is defined as a single point of discharge into the Nation's
waters, such as industrial process water from a pipe or piped landfill leachate. "Non-point" sources are defined
as stormwater that carries contaminants into the Nation's waters, for example, roadway run-off.
Under the Clean Water Act, as amended in 1987, water quality standards are to be achieved by requiring
technology-based effluent control limitations for all point sources of pollution. To address non-point source
pollution, States are authorized to develop Watershed Management Programs when water quality standards of a
particular water body cannot be met without a pollution prevention approach.
The Clean Water Act establishes technology-based controls for effluent discharge. The program involved
development of water quality standards, which set goals for water quality and allowed for standard use of
technology-based controls for point sources. In recent years, these water quality standards have received new
emphasis by Congress and EPA. The Clean Water Act is scheduled for reauthorization in 1993, and there has been
much discussion by Congress about non-point source pollution control, pollution prevention, and watershed
management.
The Clean Water Act establishes the National Pollutant Discharge Elimination System (NPDES) which
requires point source discharges to obtain a permit before legally discharging effluent to the waters of the Unites
States In addition to the permit limits established on the basis of technology (known as effluent limitations
guidelines), the Act requires discharges to meet instream water quality standards.
The Clean Water Act also establishes controls on dredging and filling wetlands. For a project that alters
wetlands through dredging or filling, a Section 404 permit must be obtained from the U.S. Army Corps of
Engineers
Impact on Solid Waste Management Practices
The Clean Water Act, as amended in 1987, impacts several elements of an integrated solid waste
management system. Areas of impact include:
Landfill Leachate and Wastewater (including condensate, washwater, and residue from
Oil/Water Separators)
Stormwater Management at Landfills, Combustion Facilities, Solid Waste Processing
Facilities, and Composting Operations
Solid Waste Management Facilities that store oil and/or petroleum products
Disposal or Composting of Municipal Sewage Sludge
Landfill Siting
Requirements related to solid waste management are highlighted in the following paragraphs
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Permitting of Point and Non-Point Sources
• An NPDES or pre-treatmeiit permit must be obtained for discharge of effluent from landfill
leachate and wastewater treatment systems.
There are several types of effluent limits which must be considered when leachate and wastewater
management systems are designed These include:
1) National Pollutant Discharge Elimination System (NPDES) Permit Limitations;
2) State Pre-Treatment Permit Limitations; and
3) Publicly-owned Treatment Works (POTW) Use Ordinance Limitations.
Any discharge by point sources to "waters of the U.S." must be permitted. The National Pollutant
Discharge Elimination System (NPDES) permit uses effluent limitation guidelines to set enforceable
conditions for discharge. The permitting program is generally operated by EPA-approved states or the
EPA. For new sources, standards of performance for on-site treatment must reflect the greatest degree
of effluent reduction which EPA determines to be achievable through application of the "best available
control technology". These standards will vary depending on the receiving stream. An "individual permit"
must be obtained for each new source if treatment is to solely be done on-site prior to discharge.
When effluent is to be treated off-site through discharge to a publicly owned water treatment plant, a
different set of standards applies. In addition to meeting local sewer use ordinance limitations, most states
and/or counties require pre-treatment permits prior to discharge of landfill leachate at publicly owned
treatment plants.
• Industrial activities (including landfills, combustion facilities, and solid waste processing
facilities) must obtain a permit related to slonnwater management. Tin's permit program is
applicable to both construction and operation of facilities.
Every "industrial" and "construction-related" land use requires a discharge permit for stormwater, which
is identified under the Clean Water Act as a "nonpoint source" of water pollution. The stormwater
management program is generally under the authority of the states.
If stormwater is to be discharged by an industrial or construction site that is greater than 5 acres, a "general
permit" under the NPDES program is required. The purpose of the general permit is to specify the means
by which stormwater will be managed at the site. To apply for a general permit (as opposed to an
individual facility permit), a notice of intent to discharge must be filed with the State (or EPA if the state
is not delegated authority). Following the notice of intent procedure, facilities have a specified period of
time to develop a Stormwater Pollution Prevention Plan outlining conditions under which a general permit
will be issued. A pollution prevention plan must be based on "best management practices" for nonpoint
sources. In the case of a landfill, a general permit may specify that certain operational requirements be
employed, such as maintaining vegetative cover on the landfill, segregating landfill leachate from
stormwater run-off, and using sediment ponds. Additional management practices might include storage
of petroleum, fertilizers, and other potential contaminants under a covered area to insure that contaminated
run-off is not generated at the site.
If stormwater is discharged to a municipal storm sewer system, a notice of intent must also be filed with
the receiving municipality, which has the authority to enforce further requirements.
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• Any waste management facility that has the potential to discharge oil and/or petroleum products
must prepare a Spill Prevention Control and Countenneasure (SPCC) Plan.
Any facility that stores oil and/or petroleum products in quantities greater than those specified by EPA must
develop a SPCC Plan that specifies pollution prevention measures to be taken and identifies what actions
would be taken in case of an accidental spill. Quantities of stored oil and petroleum products that trigger
preparation of an SPCC Plan are:
• 1,320 gallons stored above ground,
• 42,000 gallons stored under ground, or
• 660 gallons stored in one container.
Disposal/Composting of Municipal Sewage Sludge
• Sewage sludge that is sent to a landfill for disposal must meet certain requirements of the Clean
Water Act. Sewage sludge that is sprayed, spread, or composted on the land requires a permit
under Part 503 of the Clean Water Act.
Sewage sludge that is sent to a landfill must be tested to ensure that the sludge is non-hazardous and non-
liquid. This requirement is met by passing the "paint filter test," and is performed by placing a 100
milliliter sample of sludge on a conical 400 micron paint filter. The sludge is not acceptable for landfilling
if liquid passes through the filter within five minutes. Sludge disposal is acceptable provided the sludge
is non-hazardous and that it passes the paint filter test.
Sewage sludge that is sprayed, spread, or composted on land is regulated under Part 503 of the Clean
Water Act. Some of the Part 503 requirements apply to the preparer of the sewage sludge, some apply
to the applier of the sewage sludge, and some apply to the owner/operator of the surface disposal site.
Therefore, a permit issued to the entity composting the sludge may not need to contain all of the Part 503
requirements; the permit should include only those requirements applicable to the entity. Each permit must
contain the standard conditions required in every NPDES permit, such as duty to comply with permit
conditions, duty to mitigate, records retention, and monitoring per EPA approved test procedures.
Landfill Siting
• Under the Clean Water Act and other federal and state regulations/policies, development and
fill is strictly limited in defined wetlands. When siting new facilities, wetlands should be avoided
to the maximum extent practicable. If no "practicable alternatives" to facility development in
wetland areas exists, then a Section 404 permit must be obtained from the U.S. Army Corps of
Engineers.
Section 404 of the Clean Water Act prohibits the discharge of dredged or fill material into "Waters of the
United States" without a permit from the Corps of Engineers. "Waters of the United States" is a broad
term which includes navigable waters of the United Slates and adjacent wetlands and tributaries as well as
other wetland areas.
If wetlands are suspected to exist on a property, the Corps of Engineers first makes a determination of the
junsdictional boundaries of the wetland, according to specified criteria. This jurisdictional delineation is
based on area hydrology, soil, and the presence of hydric vegetation. If wetlands are identified using these
criteria, it is necessary to obtain a Section 404 permit from the U.S Army Corps of Engineers. These
criteria have been the subject of considerable controversy during the past few years Criteria are currently
based on the 1987 Corps of Engineers Wetlands Delineation Manual.
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Future Trends
Reauthorization of the Clean Water Act with amendments is anticipated this year. The purpose of the
amendments is to:
1. Provide expanded assistance to state governments;
2. Address remaining water quality provisions;
3. Employ new pollution control strategies; and
4. Improve Clean Water Program implementation.
Modifications to the Act are likely to include:
• Encouraging "comprehensive watershed protection " by requiring additional pollution prevention
planning and watershed protection programs;
• Strengthening provisions for combined sewer overflows (CSO), including permitting and
enforcement activities;
• Expanding State Revolving Loan Fund Applicability to include funding sources for CSO and
stonnwater control programs, and watershed plans;
• Revising requirements concerning technology-based controls for effluent discharge and
authorizing EPA to apply source reduction practices in guidelines;
• Establishing a pollution prevention planning process for industrial wastewater discharged
directly into the Nation's waters or to municipal sewer systems; and
• Modifying stonnwater management permit requirements.
Additional future changes pertaining to the regulation of wetlands is likely. Given the considerable
controversy surrounding wetland definition criteria, an extensive study by the National Academy of Science has been
commissioned. Regulatory changes related to wetlands will likely occur after this study is completed in September
1994 Wetland regulation is not likely to be addressed by reauthorization of the Clean Water Act.
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REGULATORY IMPACT ASSESSMENT ON
SOLID WASTE MANAGEMENT
UNDER THE NATIONAL ENERGY POLICY ACT OF 1992
Purpose of the Act
The National Energy Policy Act of 1992 establishes the legislative basis for development of alternative
energy sources. The purpose of the Act is twofold: to improve energy efficiency and to develop/implement an
incentive program related to the use of alternative fuels.
Some of the first actions authorized under the Act are to study methods to facilitate improved energy
efficiency and the use of alternative fuels. When these studies are completed, definitive regulatory requirements
are likely to be instituted. Until then, the Act offers some broad policy guidelines.
Impact on Solid Waste Management Practices
The National Energy Policy Act of 1992 potentially impacts several elements of an integrated solid waste
management system. Areas of impact are:
Renewable Energy, including Methane at Landfills, Conversion of Biomass
Combustion of Solid Waste Combined with Coal
Alternative Fueled Vehicles and Collection of Solid Waste and Recyclables
Energy Efficiency for Solid Waste and Recyclables Processing
Energy policies that can be related to solid waste management are highlighted in the following paragraphs
Renewable Energy
• Tlie Department of Energy (DOE) is soliciting proposals for demonstration and commercial
application projects for renewable energy and energy efficiency technologies.
Under Title XII of the National Energy Policy Act of 1992, DOE is pursuing research in the area of
renewable energy. Areas of interest include the production and sale of electricity, thermal energy, or other
forms of energy using a renewable energy technology. These technologies might include recovery of
methane gas from landfills or conversion of cellulosic biomass to liquid fuels, such as ethanol. Combustion
of municipal solid waste is not considered renewable energy production.
Combustion of Solid Waste and Coal
• Tlie Department of Energy (DOE) is establishing a program of research and development with
respect to the use of solid waste combined with coal as a fuel source for clean coal combustion
technologies.
Under Section 1303 of the National Energy Policy Act of 1992, DOE shall establish a program to study
the potential merits of using solid waste combined with coal as a fuel source for clean coal combustion
technologies The program shall address:
• the feasibility of cofinng coal and used vehicle tires in fluidized bed combustion
units,
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• the combined gasification of coal and municipal sludge using integrated
gasification combined cycle technology;
• the feasibility of cofiring, in fluidizedbed combustion units, waste methane from
coal mines, including ventilation air, together with coal or coal wastes; and
• other sources of waste and coal mixtures in other applications that the DOE
considers appropriate.
Alternative Fuels and Fleet Vehicles
• The Department of Energy shall issue regulations establishing guidelines for comprehensive
state and local Incentive Programs to accelerate the introduction and use of alternative fueled
vehicles.
Section 409 of the National Energy Policy Act of 1992 mandates that DOE establish guidelines for the
development, modification and implementation of State Plans related to developing programs that foster
the use of alternative fueled vehicles. These plans will develop a program that results in scheduled
progress toward, and achievement of the goal of introducing substantial numbers of alternative fueled
vehicles in each state by the year 2000. Plans shall also describe the manner in which each state will
coordinate with federal and local governmental entities, and will examine the possibility of introducing
alternative fueled vehicles into State-owned or operated motor vehicle fleets. It is possible that plans will
subsequently be developed to encourage the use of alternative fueled vehicles in local government fleets,
such as solid waste and recyclable collection vehicles.
Energy Efficiency and Processing of Solid Waste and Recvclables
• Tlie Department of Energy sliall make grams to industrial associations to support programs to
improve energy efficiency in industry and support a voluntary energy efficiency improvement
target program.
Under Sections 131 through 133 of the Act, DOE shall request project proposal and provide annual grant
on a competitive basis. The purpose of this annual award program is to recognize those industry
associations or individual industrial companies that have significantly improved their energy efficiency.
In addition, DOE shall report to Congress regarding the establishment of mandated energy efficiency
reporting requirements and voluntary energy efficiency improvement targets for energy intensive industries
This program to increase energy efficiency in energy intensive industries could provide incentives or
requirements related to energy efficiency at solid waste processing facilities, such as Material Recovery
Facilities (MRFs) and Recovered Material Processing Facilities (RMPF).
Future Trends
The Energy Policy Act of 1992 encourages improved energy efficiency and the development of alternative
forms of energy. This policy directive is likely to gain momentum in coming years, thus providing support for
development of waste-to-energy and biomass facilities, and a potential market for landfill gas as a fuel source In
addition, requirements for improved energy efficiency may be enacted to strengthen the current incentive program.
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REGULATORY IMPACT ASSESSMENT
FOR SOLID WASTE MANAGEMENT
UNDER SUPERFUND (CERCLA/SARA)
Purpose of the Act
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) - commonly
known as Superfund - was passed into law in December 1980 in the wake of such incidents as Love Canal and the
Valley of the Drums. Both incidents proved how improper disposal of hazardous waste could have serious impacts
on public health and the environment. The Superfund Amendments and Reauthorization Act (SARA), which was
an extension of the program, was signed into law in 1986.
The goal of Superfund is to clean up hazardous waste sites where toxic releases are known to have
occurred. Superfund established a program to identify sites from which releases of hazardous substances into the
environment have occurred, to ensure that they are cleaned up by responsible parties or the government, to evaluate
damages to natural resources, and to create a claims procedure for parties who have cleaned up sites or spent money
to restore natural resources. SARA expands the Superfund program and, under Title III, authorizes a free-standing
program known as the Emergency Planning and Community Right-To-Know Act of 1986.
Impact on Solid Waste Management Programs
The impact of Superfund and its amendments on solid waste management activities is related to
contamination of the environment. Any contaminated properties bought or sold by a local government are subject
to clean-up liability. Any facility that stores or treats regulated quantities of "hazardous substances" is subject to
SARA Title III reporting requirements. In addition, any solid waste management facility site that releases or
threatens to release "hazardous substances" into the environment is subject to clean-up under Superfund While
groundwater contamination associated with municipal landfills has often been handled under Superfund m the past,
the issuance of RCRA Subtitle D offers a new regulatory mechanism for groundwater monitoring and corrective
action at landfills. It is likely that Superfund will no longer be the primary vehicle used to clean-up groundwater
contamination at landfill sites. However, Superfund will still be applicable for releases of other hazardous
substances into the environment.
Areas of impact include:
Landfills and Unregulated Disposal Sites
Combustion of Solid Waste
Collection and Storage of Hazardous Waste
Any Waste Management Facility Site that is part of a Real Estate Transaction
Requirements related to solid waste management are highlighted in the following paragraphs.
Reporting and Recordkeeping at Waste Management Sites
• Requires owners/operators of sites mid/or facilities where hazardous releases have occurred or
may occur to assume various reporting and recordkeeping responsibilities.
There are two types of reporting requirements under Superfund (CERCLA/SARA).
I Spill Reporting Requirements: and
2. Facility Notification Requirements
G HOME.WP 10165.FACT SFD SAM
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The first requirement, under CERCLA Section 103(a), relates to actual releases (including spills) of listed
hazardous substances. Under the spill reporting requirements, if you are in charge of a facility that handles
hazardous substances, you must immediately notify the National Response Center operated by EPA (1 -800-
424-8802) if the release is greater than or equal to the reportable quantity for that substance. The federal
time period for measuring and reporting the amount released is 24 hours. In most cases, notification of
(he appropriate State agency is also required.
The second type of reporting requirement is facility notification. The facility notification requirements,
under CERCLA Section I03(c), requires that the owner/operator of a facility where hazardous wastes have
been treated, stored, or disposed of must notify EPA unless the facility has already been identified through
the Resource Conservation and Recovery Act (RCRA) identification procedures. The purpose of this
requirement is to assist EPA in identifying the location of prior disposal sites and in assessing their
potential threat to human health and the environment. From information received as part of this reporting
requirement, EPA has developed the current list of Superfund sites. Technically, the deadline for facility
notification was June, 1981; however, EPA treats the facility reporting obligations as ongoing, so new
evidence of past disposal should be reported as soon as possible. To file facility notification, a
"Notification of Hazardous Waste Site" form (OMB No. 2000 0138) must be submitted to EPA. If a
facility which should have been reported is discovered, it is prudent to enlist the assistance of an attorney
or consultant familiar with EPA requirements under Superfund.
In addition, owners/operators of existing or closed facilities that treat, store, or dispose of hazardous
substances waste are required to retain records of:
• the location, title, and condition of the facility/facilities, and
• the identity, characteristics, quantity, origin, and condition of any
hazardous substances contained or deposited there.
These reporting and recordkeeping requirements could potentially apply to both existing and closed landfill
sites and sites where household hazardous waste is treated, stored, or disposed
• Requires reporting and recordkeeping for emergency planning and community right-to-
know under Title 111 of SARA.
There are three major reporting requirements under SARA Title III that relate to:
1) Emergency Planning Notification;
2) Emergency Release Notification; and
3) Reporting on Chemicals and Releases for Community Right-to-Know.
Under the Emergency Planning Notification Requirements (Section 302(c)), a facility that contains an
"extremely hazardous" substance in amounts greater than EPA's list of "threshold planning quantities",
must notify the State Emergency Response Office/Commission within 60 days of the time that (he threshold
quantity has been reached This requirement could be applicable to solid waste management in the case
of collecting and storing household or other hazardous substances/waste. If a facility is subject to Title III
requirements, additional reporting about operations at the facility are necessary.
Under the Emergency Release Notification Requirements (Section 304), a facility must immediately report
releases of hazardous substances from facilities where a hazardous chemical (as identified on EPA's list
of hazardous substances) is produced, used, or stored, if the release results in exposure to persons off site
This report must be made at the same time and in the same form as notice to the National Response Center
under CERCLA's spill reporting requirements (Section I03(a)).
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The Community Right-to-Know Reporting Provisions incorporate and build upon many of the requirements
of the Hazard Communication Standard issued by the Occupational Safety and Health Administration
(OSHA). If you already are required to prepare or have available a Material Safety Data Sheet (MSDS)
for a hazardous chemical under the Occupational Safety and Health Act, then under Section 311 of Title
III, you must submit an MSDS for each hazardous chemical, or a list of the hazardous chemicals to the
State Emergency Response Office/Commission, the local emergency planning committee, and the local fire
department. Additionally, facilities that meet the above criteria, must prepare an emergency and hazardous
chemical inventory form under Section 312 of Title III. These two reporting requirements are not likely
to be applicable at most solid waste facilities, but may be applicable if hazardous substances are used
and/or stored at a site.
• Imposes substantial financial liabilities on those parties considered responsible for Superfund
sites.
The scope of liability for superfund sites is extensive. Basically, each and every potentially responsible
party at a site can be held liable for the cost of hazardous waste cleanup. For example, if a local
government owned a landfill that accepted hazardous waste and that landfill is now designated a Superfund
site, the local government can be held liable for all or part of cleanup costs at the site. In another example,
if a local government sponsors a collection program for hazardous waste, and that hazardous waste is
improperly disposed of, thus causing a hazardous release, then the local government can be held liable for
all or part of cleanup costs.
Potentially responsible parties can include current owners/operators of a facility, owners or operators of
a facility at the time of disposal or release of hazardous substances, those who arranged for treatment or
disposal of hazardous substances (i.e. generators) and those who accept/accepted hazardous substances for
transport to a facility they themselves selected.
• Imposes liability on buyers and sellers in business and real estate transactions for sale of
contaminated property.
Under CERCLA, if you purchase real estate contaminated by hazardous substances you may have to
perform or pay for clean up. If you are a seller who owns contaminated property, the property may not
be sold, redeveloped, or otherwise improved until a cleanup is completed. In addition, deed restrictions
may be placed on future use of the property even if the site has been cleaned up.
Future Trends
At present, the EPA estimates that municipalities may be liable for costs in as many as 25 percent of the
1,200 Superfund sites nationwide. Costs to clean up these sites have been estimated at approximately $500 billion
(total cost) or an average of $4.2 million per site. Given these exorbitant costs, there has been much discussion
about limiting municipal liability under Superfund. With reauthorization of the Superfund Program scheduled for
1994. a key issue in congressional debates will be the Superfund liability scheme, specifically the idea of setting
a cap on liability for municipalities Proposed legislation, which was rejected by the Bush White House, would have
capped municipal liability for violations of Superfund.
There is additional concern about the emphasis Superfund places on attempting to assign responsibility for
clean up, rather than actually cleaning up the sites For example, the Solid Waste Association of North America
(SWANA) has responded to this issue by stating that the primary focus of the Superfund program should be the
cleanup of contaminated sites, ownership and litigation about liability should be a secondary concern
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SECTION 5
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CONFERENCE OF SOUTHERN COUNTY ASSOCIATIONS
Regional Solid Waste/Environmental Network
What Does the Clinton
Administration's Wetlands
Proposal Mean to CSCA Counties?
On August 24, 1993, the Clinton
Administration released its proposal for
resolving a number of issues relating to
wetlands. At the heart of the issues is
defining and delineating wetlands,
determining what actions require permits,
and sorting out intergovernmental
wetlands responsibilities. The proposal is
destined to have significant impacts on
counties.
Wetlands are regulated under Section 404
of the Clean Water Act which requires a
permit for dredge and fill activities
affecting wetlands. The proposal calls for
Congress to remove ambiguities relating to
wetlands by incorporating definitions
contained in regulations of "water of the
United States" and "wetlands" in the
reauthorization of the Act. Additionally,
to close a loophole caused by focusing
only on "dredge and fill" activities, the
proposal includes a final rule by the
Environmental Protection Agency (EPA)
and the Corps of Engineers (Corps) to
clarify the scope of activities regulated
under the Clean Water Act. The result of
the measures will be to clarify both the
areas and activities affected by the Act.
The proposal includes the following
initiatives:
• An executive order will be issued
embracing the interim goal of no
overall net loss of the Nation's
remaining wetlands resource base,
and a long-term goal of increasing
the quality and quantity of the
Nation's wetlands.
The Corps will establish an
administrative appeals process so
that landowners can seek recourse
short of going to court.
To speed up the permitting
process, the Corps will establish
deadlines for wetlands permitting
decisions.
The Corps and EPA have issued a
final regulation removing
approximately 53 million acres of
wetlands converted to cropland
from wetlands regulations.
The Soil Conservation Service
(SCS) will be the lead Federal
agency responsible for identifying
wetlands on agricultural lands.
The Corps and EPA have issued
guidance to field staff highlighting
the flexibility that exists to apply
less vigorous permit review to
small projects with minor
environmental impacts.
The four Federal agencies (Corps,
EPA, SCS, and the Fish and
Wildlife Service) involved in
identifying wetlands will all use the
same procedures.
The use of wetlands mitigation
banks is endorsed.
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• Incentives will be provided for
watershed planning by State, Tribal
and local governments.
• Increased funding is supported for
the U.S. Department of
Agriculture's Wetland Reserve
Program.
• Promotion of the restoration of
damaged wetlands areas through
voluntary, non-regulatory programs
is endorsed.
These initiatives are far-reaching and
address many issues relating to wetlands.
For delineating wetlands, the proposal
calls for the use of the 1987 Corps manual
pending the evaluation of the study being
conducted by the National Academy of
Science, due in November 1994. Scientists
have already made it clear that there are
technical, fiscal, and environmental
constraints preventing categorizing
wetlands based on their values. It is for
this reason that the proposal called for
greater flexibility by field staff in making
their determinations on activities which
result in small wetlands changes with
minor environmental impacts.
There are two components of the proposal
that will have the greatest impact on state
and local governments. First, the proposal
calls for a greater role for State, Tribal
and local governments in wetlands
management. It calls for an increase in
technical and financial assistance and
guidance to be provided to State, Tribal
and local governments. Under Section
404, state assumption of the permitting
program is allowable but only one state
(Michigan) has sought and received that
authority. The proposal endorses efforts
to make assumption of the program more
desirable, including partial assumption of
the program. The proposal also
recommends that Congress, with the
reauthorization of the Clean Water Act,
authorize the development of State/Tribal
watershed protection programs, requiring
local and regional involvement and
Federal approval of the State/Tribal
programs. Wetlands would be
incorporated into the overall watershed
approach, with minimum requirements for
wetlands protection and restoration
planning. Areas with approved watershed
protection plans would then receive high
priority for technical and financial support
and other Federal actions. Additionally,
the Corps will issue guidance specifying
the circumstances under which State,
Tribal, regional, and local programs can
effectively regulate Section 404 activities,
through issuance of Programmatic General
Permits. The guidance will also clarify the
safeguards required to ensure that these
programs adequately protect wetlands and
other waters. Certainly, the intent of
these initiatives is to give State, Tribal and
local governments an increased role in
wetlands management.
The second component of the proposal
that has significant implications for
counties deals with advanced delineation
of wetlands and incorporating this
information into their planning process.
Wetlands protection becomes a major
issue when people invest in land without
knowing that there may be limitations on
its use due to its wetlands characteristics.
Identifying where wetlands are,
incorporating this information into the
planning process, and letting people know
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up front that wetlands are present will do
much to eliminate wetlands controversies.
The proposal endorses these efforts
through support of watershed planning,
development of State/Tribal Wetlands
Conservation Plans, and advanced
identification of wetlands. Advanced
identification will enable local
governments to incorporate wetlands in
their comprehensive plans, in order to flag
them for those interested in altering land
use. Advanced identification is not likely
to replace on site wetlands determinations
but it does provide helpful information for
use in the planning process.
Other components of the proposal include
support of wetlands mitigation banking
and the use of state revolving loan funds
for capitalization of mitigation banks, a
certification program for private sector
wetlands delineators, and promotion of
voluntary programs to restore altered
wetlands.
The Clinton Administration has already
moved on some initiatives included in the
proposal and will be addressing more of
them in the near future. A number of the
initiatives require congressional action
with the reauthorization of the Clean
Water Act. Consequently, the form and
substance of some parts of the proposal
may change as they make their was
through the legislative process.
B \C02\CSCA\PAOLR001 JPA
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CONFERENCE OF SOUTHERN COUNTY ASSOCIATIONS
Regional Solid Waste/Environmental Network
D Day Delay
Considerable progress is being made by state
and local governments to comply with the
new Subtitle D requirements. A major
problem, however, is that the time frame is
simply too short for many state regulatory
agencies to develop rules and for many local
governments to make the transition from
current, unlined facilities to Subtitle D
landfills. A NACo task force began meeting
in August 1992 to address this and other
solid waste management issues. The
primary concern identified by the task force
was the need for an extension of the RCRA
Subtitle D deadline of October 9, 1993.
On May 10, 1993, a meeting was called by
Congressman John Dingle to bring EPA and
representatives of state and local
governments together to discuss concerns
with the deadline. Diane Shea, Associate
Legislative Director for NACo, was
instrumental in setting up this meeting. The
states represented were Virginia. Georgia,
California, Idaho, Kansas, and Vermont.
Georgia discussed how the draft Subtitle D
regulations were released in 1988 which, in
part, spurred states to enact comprehensive
solid waste management legislation. Most
states incorporated from five to seven years
to implement these legislative requirements.
After all the state laws had been passed, the
final Subtitle D regulations were released
which included the two year implementation
time frame. Local governments have thus
been faced with both federal and state
requirements that don't always mesh.
Many states tried to anticipate the final form
of the Subtitle D regulations and to put in
place requirements that would be consistent
with them. Changes in the final regulations
over the draft form, however, had a
significant impact on how landfills are to be
designed, constructed and operated. The
most significant impact of changes in the
regulations was on existing permitted
facilities and the time and cost associated
with adding features such as synthetic liners
and methane gas management systems.
In rural areas where quantities are not
sufficient to manage waste on a county-by-
county basis, options are either regional
public facilities or private facilities, with
significant increases in costs attached to
both. In many areas, reputable private firms
have not shown interest due to low volumes.
Additionally, for local governments to put
together regional coalitions takes time.
Quick fixes are nonexistent and scarce
resources may be wasted on ineffectual
actions confused by regulatory uncertainties.
Thus, many local governments were stymied
prior to finalizing Subtitle D regulations.
Now, even with the best of intentions, it
takes more time to work out solutions than
is available.
Virginia was one of the pilot states that EPA
worked with to develop the state plan.
Consequently, Virginia is ahead of most
other states in knowing what standards they
will have to meet. The primary issue raised
by Virginia focused on the financial
assurance requirements included in the
Subtitle D regulations. Under these
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regulations, local governments must provide
assurance that they have the financial
capability to close their landfill, provide
post-closure care, and finance remediation if
necessary. EPA proposals to date for
mechanisms to provide financial assurance
have been very specific. However, although
the financial assurance requirements are
suppose to go into effect on April 9, 1994,
the draft rules developed by EPA were
recently rejected by OMB, sending EPA
back to the drawing board to develop a new
draft. Consequently, local governments have
no guidance to assist them in budgeting for
financial assurance.
Even those states that were selected as pilots
for meeting the requirements placed on state
regulatory agencies under Subtitle D have
had difficulty finalizing the necessary plans,
rules and regulations which, in many
instances, must be in place before local
governments can move foreword to meet
Subtitle requirements. For example,
California, one of the pilot states, has
recently been notified by EPA that portions
of its plan do not meet Subtitle D standards.
Amending the plan might require rule or
legislative changes by the state, either of
which would take time. Kansas pointed out
that its legislature, like those in many states,
was out of session and, if legislative changes
were required in its plan, it is unlikely that
they would be made before 1994.
Other issues discussed by participating states
included, the lack of clear guidance when
the state plan has not been finalized, the
problems experienced by western states in
meeting requirements (e.g. environmental
impact statements) when federal land is
involved, the difficulty in gaining public
support tor financing waste management
alternatives, and the short time frame for
capping a landfill once it is closed.
Following the presentations. Sylvia
Lowrance of EPA announced that the agency
would seek an extension to certain effective
dates of Subtitle D.
(1) A six month extension will be sought of
the effective date from October 9, 1993 to
April 9, 1994 for all owners/operators of
landfills. This would provide enough time
for EPA to approve the landfill permit
programs of nearly all states, thus ensuring
that a landfill would comply with one set of
rules.
(2) An additional extension will be sought
which approved states could grant at their
discretion to a narrow set of facilities (e.g. in
communities which have a record of making
good faith efforts to establish a new site but
which need a modest amount of extra time
to finish the permit process). EPA is
considering an extension of six to twelve
months for this additional extension.
(3) A one-year extension will be sought for
the financial assurance requirement from
April 9, 1994 to April 9, 1995. EPA
initially delayed the effective date of the
financial requirements to April 9. 1994. to
allow for the completion of a rule-making
providing a "financial test" as an alternative.
less costly financial mechanism for many
local governments and private firms. This
rulemaking has taken longer than expected,
resulting in the need for an extra period of
time before the financial requirements take
effect.
Currently there are parallel action tracks that
NACo is following, administrative and
legislative. On the administrative side, EPA
intends to publish the proposed rule by the
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end ot June 1993. and take public comments
through the end of August. The change must
then be approved by OMB. Consequently.
the rule change may not be finalized by
October 9. 1993. NACo. state associations
and local governments must stay tuned to
this effort to ensure that it will meet their
needs. On the legislative side, a remedy
would require passage of a bill by Congress.
One bill HR 767 is currently pending in the
House. This bill, sponsored by Congressman
Glenn English (D. Oklahoma), calls for an
outright two year extension in the RCRA
deadline. Congressman English is soliciting
the support of congressional co-sponsors for
his bill at this time. While a Senate bill has
not been filed as of this date. Senator Dirk
Kempthorne (R. Idaho) has a bill drafted and
prepared for filing. This bill also calls for a
two year extension. Regardless of which
track is pursued. Congress and EPA need to
hear from local officials supporting the
deadline extension.
EPA should be commended for the proposed
extension but. as with everything else
associated with Subtitle D, the time frame is
short. Local governments will not have
clear guidance on the extension until it is
finalized. Consequently, CSCA members
should urge their counties to continue to
move as rapidly as possible to full
compliance with Subtitle D. It should be
stressed that noncompliance with Subtitle
D opens up local governments who are
owners/operators of disposal facilities to
citizen suits after the date of compliance.
Therefore, it is imperative that local
governments be in compliance whenever
Subtitle D goes into effect. It is also
essential that CSCA members understand
that this extension could be killed or
weakened to the point of not providing
effective relief.
Action Item: This week key members of
Congress informed NACo that they were
being pressured by private solid waste
companies and environmentalists to not
extend the October 1993 date. On the other
hand, they were not hearing from local
officials who endorse the deadline extension.
Consequently, it is necessary for you to
contact (telephone. FAX) your congressional
delegation and EPA Administrator Carol
Browner to voice support for the rule
change. When you do this, you should copy
Diane Shea at NACo so that she can
coordinate the national effort.
Ms. Shea has specifically asked that county
officials contact members of the Senate
Environment and Public Works Committee
immediately (Rm SD 456 Dirksen Building,
Washington. D.C. 20510; Telephone: 202-
224-6176). Members of this committee are:
Chairman Max Baucus (D. Montana); Daniel
P. Moymhan (D. New York); George J.
Mitchell (D. Maine); Frank R. Lautenberg
(D. New Jersey); Harry Reid (D. Nevada);
Bob Graham (D. Florida); Joseph I.
Lieberman (D. Connecticut); Howard M.
Metzenbaum (D. Ohio); Harris Wofford (D.
Pennsylvania); Barbara Boxer (D.
California); Ranking Minority Member John
H. Chafee (R. Rhode Island): Alan K.
Simpson (R. Wyoming); Dave Durenberger
(R. Minnesota); John Warner (R. Virginia);
Robert C. Smith (R. New Hampshire);
D.M.(Lauch) Faircloth (R. North Carolina);
and Dirk Kempthorne (R. Idaho).
Additionally, members of the House Energy
and Commerce Committee should be
contacted (Rm 2125 Rayburn Building,
Washington. D.C. 20515; Telephone: 202-
225-2927). Members from CSCA states
include: Ralph Hall (D. Texas); John Bryant
(D. Texas): Rich Boucher (D. Virginia): Jim
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Cooper (D. Tennessee): J. Roy Rowland (D
Georgia): Craig Washington (D. Texas):
Blanche Lambert (D. Arkansas): Ranking
Minority Member Thomas Bliley (R.
Virginia): Jack Fields (R. Texas); Michael
Bilirakis (R. Florida); Joe Barton (R. Texas):
J. Alex McMillan (R. North Carolina); and
Cliff Steams (R. Florida).
NETWORK CONTACTS
Project Manager
John B. Gardner
Conference of Southern Counties Association
PO Box 2486
Peachtree City, Georgia 30269
(404) 487-5477
FAX (404) 487-4703
Project Consultants
Deanna L Ruffer
Project Director
Roy F. Weston. Inc.
1880-H Beaver Ridge Circle
Norcross. Georgia 30071
(404) 448-0644
FAX (404) 368-1168
Dr. Jim Kundell
Vinson Institute of Government
University of Georgia
201 North Milledge Ave
Athens. Georgia 30602
(706) 542-2736
FAX (706) 542-9301
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CONFERENCE OF SOUTHERN COUNTY ASSOCIATIONS
Regional Solid Waste/Environmental Network
LEGISLATIVE SYNOPSIS
Summaries have been prepared of existing
solid waste laws in each of the
participating states. The purpose of these
synopses is to provide participating states
and EPA with information on the
legislative status in each state and
throughout the region. State associations
can use this information to determine how
legislative issues have been addressed in
other states and identify legislative
similarities and differences from state to
state.
The synopsis for each state is currently
being sent to the respective state
association for review and comment. If
we did not meet with you in Washington
(NACo), please review the draft synopsis
and let us know as soon as possible if
there are any changes that should be
made in the synopsis for your state. Once
all states have had a chance to review the
synopsis for their state, a package of eight
state synopses will be distributed to each
participating state association and EPA.
In addition, a summary document will be
developed based on the information
contained in the synopses.
LEGISLATIVE TRACKING
If there is an interest in having us track
this year's legislative activity related to
solid waste, we need to have each
association send us information on what is
happening. The simplest way to do this is
to have each association put John Gardner
on its mailing list to receive the same
information you send to your membership.
TO MAKE THIS PROCESS WORK WE
NEED YOUR HELP.
FLOW CONTROL (DESIGNATION)
The term flow control or designation is
used to describe a range of legislative
actions that are taken by government
entities to accomplish one or more of the
following objectives:
1. assure the ability to plan for and
meet management responsibilities
and mandates;
2. designate the management facility
solid waste must be delivered to;
3. protect the economic viability of a
solid waste management system;
and/or
4. control the use of specific facilities
within a solid waste management
system.
There have essentially been three ways
that governments have tried to control the
flow of waste. These are:
1. Restricting the flow of solid waste
into a jurisdiction.
2. Controlling the destination of waste
generated within the jurisdiction by
directing it to specific facilities.
3. Controlling the flow of materials
recovered from the solid waste
stream.
Each of these approaches has its own set
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of legal considerations and issues. None
can be said to be completely or
adequately addressing the objectives or
needs of local or state government. In
addition, given the current attention on
this issue, whatever approach is taken to
controlling how solid waste is managed, is
likely yo be challenged. Alternatively,
good planning and a thorough
understanding of need may decrease the
demand for specific flow control action.
A summary of some of the case law
related to the issues of flow control and
suggested approaches for states and local
governments to take is being prepared
and will be distributed within the next
month.
FINANCIAL ASSURANCE
Under Subtitle D, landfill owners.including
local governments, must provide assurance
to EPA and state regulatory agencies that
they have the financial capability to
address:
1. the cost of closing landfills;
2. the cost of caring for landfills after
closure; and
3. the cost of correcting any problems
that occur at operating or closed
landfills.
To address this requirement, it is
recommended that local governments
separate financial assurance requirements
into four categories.
1. Funds needed to close existing
landfills. For many local
government landfill owners, the
issue associated with providing the
necessary assurance is that funds
have not been set aside for these
costs over the life of the facility.
Thus, in many cases the local
governments are faced with
unplanned for, yet significant, costs.
It is also important to keep in mind
that, regardless of what approach is
taken to meeting the regulatory
requirement for demonstrating
financial assurance, at some point
in time costs will be incurred for
the closure of existing landfills.
Funds needed to close new
landfills. Like the cost associated
with closing existing landfills, these
are costs that will be incurred, at
some point in time, at each
landfill. The simplest approach to
take to provide for these costs is to
establish a reserve fund with an
incremental amount of money set
aside to provide the funds
necessary for closure by the time
the facility is filled to capacity. A
straight forward way to generate
the funds needed for closure is
through the addition of a fee
charged for use of the facility.
Funds needed to address post
closure care needs. One significant
issue to be addressed in defining
how facility costs will be met after
closure, is the fact that the typical
method of generating revenue (i.e.
charging a tipping fee) may no
longer be available for use.
However, like closure costs, post
-------
closure costs are costs that will
definitely be incurred at all
landfills.
4. Funds needed to correct problems
that occur at operating or closed
landfills. Unlike closure and post
closure costs, costs associated with
corrective actions at landfills will
not be incurred unless a problem,
such as groundwater
contamination, is encountered at a
facility. Because of the significant
changes that have occurred in how
solid waste disposal facilities are
designed and operated over the
past decade, there is little
information available to assess the
likelihood that corrective action
will be needed at a specific facility.
In addition, the cost of corrective
action could vary widely from
facility to facility depending on the
specifics of the problem
encountered.
A paper summarizing the options allowed
to be used for meeting the financial
assurance requirements and providing
guidance to states and local governments
is currently being prepared and will be
distributed to the participating state
associations within the next month.
DELAY OF SUBTITLE D DATE?
House Resolution 767, the "Solid Waste
Disposal Relief Act of 1993," has been
introduced by Congressman English of
Oklahoma. The intent of this legislation
is to delay the effective date of the
Subtitle D regulations from October 9,
1993 to October 9, 1995. The chances of
this legislation passing are not known at
this time.
Even those local governments who took
immediate steps to meet the requirements
of this regulation have found that a two
year implementation time frame is
inadequate. The log jam that has
developed in state regulatory activity is
one of the most evident examples of the
inadequacy of the two year
implementation period contained in this
regulation. State regulatory agencies are
faced with the challenge of issuing a
significantly increased volume of permits
and permit modifications in a timely
manner, with limited financial and staff
resources.
NETWORK CONTACTS
Project Manager
John B. Gardner
Conference of Southern Counties
Associations
PO Box 2486
Peachtree City, Georgia 30269
(404)487-5477
FAX (404)487-4703
Project Consultants
Deanna L. Ruffer
Project Director
Roy F. Weston, Inc.
1880-H Beaver Ridge Circle
Norcross, Georgia 30071
(404)448-0644
FAX (404)368-1168
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Dr. Jim Kundell
Vinson Institute of Government
University of Georgia
201 North Milledge Ave.
Athens, Georgia 30602
(706)542-2736
FAX (706)542-9301
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CONFERENCE OF SOUTHERN COUNTY ASSOCIATIONS
Regional Solid Waste/Environmental Network
The brainstorming session on January 8,
1993 was very informative and we thank all
those who participated. Based on this
discussion, we have identified priority issues
and technical topics for which information is
requested. We are also proceeding with
preparation of the state by state legislative
synopses and hope to distribute these with
the February newsletter.
LEGISLATIVE ACTIVITY
Sessions in most of the states are beginning
the second week of January.
Start
Date
End
Length Date
Alabama
Arkansas
Georgia
Kentucky
North
Carolina
South
Carolina
Tennessee
Texas
Virginia
West
Virginia
1-11-93 60 days
1-11-93 40 days
Special Session in 1993
1-27-93
Mid
August
(approx)
1-12-93
1-12-93
1-13-93
6-10-93
140 days
2-27-93
2-10-93 60 days
If you have not provided us with the dates
of your legislative session, please do so. As
we discussed in Charlotte, please send your
weekly legislative tracking sheets to us so
that we can compile them for the
newsletters. Legislative tracking sheets
prepared by the County Associations should
be sent to John Gardner.
PRIORITY ISSUES
From the brain stormin? session, four issues
emerged as the priority concerns in a
majority of the states. We will be
researching and compiling further
information on each issue for future
distribution.
1. Financial Assurance
Under Subtitle D, local governments must
assure that they have the financial capability
to address any identified problems with their
solid waste facilities. The mechanisms to be
used by (required of) local governments to
meet this requirement, which becomes
effective April 9, 1994, have not yet been
fully defined. Both Virginia and Texas have
initiated studies of state trust funds as a
means of dealing with the financial
assurance requirements.
2. Flow Control
Control of the flow of solid waste and
recovered materials has major implications
for local governments. There are three
aspects of flow control: interstate transport;
control of solid waste; and control of
recyclables. Each has it's own set of issues.
Recent and pending court action has put in
question state and local government
-------
authority in each of these areas (in addition
to the overriding issue of ownership of
recyclables) and congressional action may be
taken as part of RCRA reauthorization.
These uncertainties have a direct impact on
local governments' ability to plan for,
manage, and finance solid waste and
recyclables management facilities. North
Carolina provided examples on how the state
and local governments are attempting to
address this issue.
3. Establishment of Fees
Clear establishment of the authority to set
fees as well as the mechanisms for collection
and enforcement is increasingly important as
solid waste management moves towards
being a fee based service. North Carolina
local government has advanced this issue,
including introducing the concept of
availability fees versus user fees.
4. RCRA, Subtitle D
Of most immediate importance is the
implementation of the Subtitle D disposal
regulation as released on October 9, 1991.
Even those local governments who took
immediate steps to meet the requirements of
inij icgulaiiun have founJ that a two year
implementation time frame is inadequate.
The log jam that has developed in state
regulatory activity is one of the most evident
examples of the inadequacy of the two year
implementation period contained in this
regulation. State regulatory agencies are
faced with the challenge of issuing a
significantly increased volume of permits
and permit modifications in a timely manner,
with limited financial and staff resources.
TECHNICAL INFORMATION AREAS
Several items of common interest to local
governments in the south were identified.
The objective is to provide factual
information on each that can be used by the
Associations to better inform their local
governments. The four identified topics
areas are: waste reduction, regionalization,
transfer stations, and privatization (interim &
long-term).
NETWORK CONTACTS
Project Manager
John B. Gardner
Conference of Southern Counties Association
PO Box 2486
Peachtree City, Georgia 30269
(404) 487-5477
FAX (404) 487-4703
Project Consultants
Deanna L Ruffer
Project Director
Roy F. Weston, Inc.
1880-H Beaver Ridge Circle
N'-.rcriss, Georgia 30071
(404) 448-0644
FAX (404)368-1168
Dr. Jim Kundell
Vinson Institute of Government
University of Georgia
201 North Milledge Ave
Athens, Georgia 30602
(706) 542-2736
FAX (706) 542-9301
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SECTION 6
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\
u.
CONFERENCE OF SOUTHERN COUNTIES, ASSOCIATION
P. O. BOX 2486
PEACHTREE CITY, GEORGIA 30269
SEPTEMBER 1993 - THIRD EDITION
A****************************************************************
A****************************************************************
This newsletter will be devoted mostly to Solid Waste items
for your information. The first series of items are from SOLID
WASTE DIGEST (August 1993) Southern Issue.
FLORIDA
county Wast* Disposal
A major step was taken to
settle the disputes around the
Lee-Hendry county Landfill in
Hendry County. The county com-
missioners agreed to settle one
lawsuit and agreement forestal-
ling another. The landfill
will hold noncombustible waste
as well as ash from the Lee
County's planned waste-to
energy incinerator. The
incinerator will burn garbage
from both counties. Concess-
ions by Lee County commiss-
ioners will allow a NO BID
award to operate the facility
to Waste Management Inc. In
addition, agreement was reached
to limit the lifespan of the
landfill to meet a list of
conditions by adjacent land-
owners .
The county will construct
and own the landfill with Waste
Management running it for 20
years. The agreement with the
landowners follows:
* Forbids Lee County from
expanding the landfill.
* Requires 67 years of
groundwater monitoring.
*
*
Prohibits dumping raw
waste at the site.
Prohibits garbage or resi-
due from other counties.
Sets limits on the amount
of dust created from the
ash landfill.
Requires Lee County to
spend at least $2 million
to improve a road near the
site.
LOUISIANA
N«W LSAdfillS Bill VETOBDt
Louisiana Governor Edwin
Edwards has vetoed a bill that
would have placed a moratorium
on new landfill permits until
the state adopts a regional
landfill plan.
The issue is over disposal
companies seeking landfill per-
mits within several miles of
each other in Louisiana. Two
legislators think the only way
to support the expansions is
with out-of-state waste.
The bill was sponsored by
Rep. Randy Roach & Sen. Thomas
Greene. The bill was to STOP
Louisiana from becoming a dump-
ing ground for the Gulf Coast's
solid and industrial waste.
-------
Gov. Edwards believed the
bill would have paralyzed the
state's solid waste permitting
process and halted solid waste
permitting for an indefinite
period of time.
Btttt Adopts MOV Bavirouraiital
Safeguardst
The North Carolina Commission
for Health Services has adopted
new environmental safeguards to
crack down on the state's 120
solid waste landfills.
The requirements apply to
new landfills, renewed use of
current landfills and expanding
current landfills as follows:
* Permits will authorize 5
year landfills instead of
the recent 10 years.
* Liners for all landfills
will be required beginning
October 1993.
* Demonstrate adequate fin-
ances to cover the cost of
closing and cleaning up
landfill sites required by
operators.
* Increased groundwater mon-
itoring and larger buffer
areas will be required to
detect contamination from
leaking chemicals & fluids
from landfill waste.
The new regulations caused
local officials to complaine
that the regulations were rush-
ed into effect without adequate
public review and that cities
and counties are economically
and technically unprepared to
meet the new regulation. The
State Division of Solid Waste
Management says that many un-
lined landfills across the
state are already contaminating
groundwater. In addition, the
state officials noted that
local officials have known of
the impending regulations for
years, so this should not have
come as a surprise.
However, in a concession
to local officials, a task
force has four months to come
up with amendments that could
render those rules less rigid
as agreed to by the NC Commiss-
ion for Health Services.
Champion will Us* Dtottur
Landfill's Wood Waste for Fusli
Champion International at
its Courtland paper mill will
use scrap wood deposited in the
Decatur-Morgan County j ointly
owned landfill. Champion will
buy approximately 1,300 tons at
$3 per ton annually to be used
as waste to fuel in manufactur-
ing white papers.
Alabama Pallet Co. of Town
Creek takes the wood chips from
shredded used and discarded
pallets, construction and demo-
lition debris, large tree limbs
and trunks 18 miles to the pulp
and paper complex.
The Alabama Department of
Environmental Management has
recognized the Decatur-Morgan
County landfill as the leader
in the state in composting and
wood waste recycling.
In addition other products
from recycling have been mark-
eted from the landfill. Leaf
compost and mulch produced from
grass clippings, leaves, small
brush and wood waste have
produced over 12,000 tons and
$33,000 in sales from the pro-
gram started 14 months ago.
The big winner appears to be
that the green waste program
net cost is approximately $10
per ton compared to $21 per ton
for landfilling. The $21 per
ton is expected to rise over
time.
-------
Initiator Program to Raeyola
Waata Tiraa into Fualt
Arkansas has made a major
break-through with a program to
turn waste tires into fuel.
The Inter-District Waste Tire
Program in Little Rock has 17
waste tire collection centers
for residents in 14 central
Arkansas counties. The program
is paid for with a state Dept.
of Pollution Control & Ecology
grant through a $1.50 per tire
tax on the sale of new tires.
The grant pays the cost
for processing most passenger
car and light truck tires. Up
to 4 tires per day can be taken
to the collection centers by
residents. Tires with no tax
or residents with more than 4
tires per day will pay a $1 per
tire charge; additional fees
of $4.50 for per tire for rim
width larger than 19.5 inches
and a $7 to $55 charge for farm
tractor or equipment tires.
Davis Rubber Co. chips the
tires into quarter size chunks
and removes the steel belts.
Davis Rubber pays 70 cents per
tire on a contract with the
program. The chips are sold to
Georgia Pacific Corp. at $18
per ton for fuel. The state
estimates that Arkansas has 2
to 3 million waste tires per
year.
7XRQXHX&
Vatlanda Plan May Hanola
Diekanaon Landfill Runoff i
There will be two options
to Dickenson County when they
close their landfill in OCT.
The options deal with leachate
that will run off the landfill
at least another 5 to 10 years.
They can keep pumping from a
collection tank and hauling it
away on almost a daily basis
or create a wetlands area to
handle the runoff naturally.
To construct the wetlands,
the county would first have to
place a liner over a quarter-
acre of land; then lay down
organic material such a wood
chips or mulch over gravel.
The most important step in the
project is planting vegetation,
such as cattails. According to
the proposal, this type of veg-
etation thrives on chemicals
such as iron and sulfate which
are in the leachate. If the
plan does not work, the leach-
ate can be diverted back to the
tank system.
County Administrator Vicki
Garrett favors the wetlands
plan, and the county is drawing
up the plans for the wetlands.
This project was coordinated
with Virginia Tech & the Powell
River Project, as well as the
Virginia Water Control Board
and state Dept. of Waste Mgmt.
Laadara Baliava BPA'a Bucking-
ham Claanup Plan ia too Coatlyt
The state's only hazardous
waste landfill (Love Container
Service Landfill) was closed in
1983. It is on the EPA list of
Superfund sites and estimated
to cost $20 million and up to
$35 million to clean up. The
county and others liable are
proposing a plan that would
cost about $1.3 million and
could simply require the site
to be capped and monitored.
Sen. Charles S. Robb and
Rep. L. F. Payne, along with
Sen. John W. Warner, have met
with EPA in an attempt to have
the proposed cleanup modified.
Buckingham never used the
landfill, but purchased it at
the request of residents who
feared a private developer
would continue to use it.
-------
Baoambia will right oil Dabria
Dunping Plans
Escambia County Commiss-
ioners will request an admin-
istrative hearing to block a
Dept of Environmental Regula-
tion decision to deposit debris
from a major oil spill at the
county's Perdido landfill.
This puts the Perdido
landfill using a large amount
of its capacity with no real
guarantee of financial compen-
sation. DER said the compen-
sation would come most likely
by whoever is ultimately re-
sponsible for the spill.
The County Attorney claims
the policy violates a state
constitutional amendment that
prohibits state agencies from
requiring local governments to
take action without also pro-
viding the necessary funds.
Mary Jean Yon, Adminis-
trator of the DER's Solid Haste
Section said contaminated soils
will -not simply be dumped at
county landfills. DER plans to
use the landfill as a staging
area to properly sort the
debris and to encourage appro-
priate use of materials, rather
than to simply require counties
to accept the debris for dis-
posal. The county officials
said, she further stated, that
no landfill that accepts the
material later will be charged
with violating environmental
regulations because of contam-
inated soil.
(JOHN'S NOTE!) If you really
really really believe this, I
know where you can get land
cheap and it's even dry nine
months out of the year! No
Joke, reread Buckingham - they
did not use the landfill and
are still liable!
SOUTH
Cleasoa University Rejects
Regional Landfill Plant
Clemsom University's ad-
visory board has recommended
not to allow construction of a
regional landfill on univer-
sity property, but instead
favors a solid waste research
facility.
Pickens , Oconee and Ander-
son Counties are appealing to
the President of the university
to allow use of more than 600
areas in Clemson's Experimental
Forest. The advisory board
does not have binding authority
on university land matters.
The site is adjacent to
the Pendleton landfill and is
strongly opposed by environmen-
talist, state wildlife offic-
ials and members of Clemson's
forestry department who fear
that such a facility could
damage ecologically important
areas .
LBO&L imas
MABMCA - BFI has filed a $38
Million lawsuit against Law-
rence County over selections of
a landfill operator. BFI is
seeking money the landfill
would have earned over the
lifespan. This comes after a
Grand Jury investigation into
whether certain commissioners
accepted money from another
landfill applicant.
VIRGINIA - King & Queen County
residents have filed papers to
appeal a June 2 state permit of
a 225 acre BFI landfill that is
expected to take in 4,000 tons
per day. The residents have
charged that the county & com-
pany have practiced environ-
mental racism by placing the
site in a predominately black
neighborhood .
-------
In closing, there are articles enclosed for your information deal-
ing with FLOW CONTROL. One by Lonnie Poole WASTE AGE SEPT 1993 and
a legal by Barry Shanoff WORLD WASTE JULY 1993. The bacfc article
from S W DIGEST "The Importance of Educating State Legislators*1.
SSUE
By LQNNIE POOLE
Poole is the Chairman of the Board
(or the National Solid Wastes
Management Association.
Why Flow Control Is Bad Public Policy
Flow control is sitting
squarely in the federal
J spotlight right now:
] Bills have been
proposed in Congress;
. . the Supreme Court is
scheduled to hear a flow
control case; and the U.S.
EPA has set three public
meetings this summer
(August 17, August 31,
September 15) to gather
views and informa-
tion for its mandat-
ed report to
Congress.
All three
branches of the
government are
hearing from the
National Solid
Wastes
Management
Association, and
our message is loud
and dear: Flow
control is bad
public policy. Here
are the reasons:
• Flow control stifles
competition. Flow control
replaces an extremely
competitive waste services
collection and disposal
market with monopolistic
public regulation.
Artificially designating
facilities limits the choices
that waste generators
(homeowners, small
businesses, and industry)
and waste transporters have
regarding the disposal sites
for the waste they generate
or manage.
Because flow control
reduces disposal choices
for generators and haulers,
it also reduces disposal
price competition. A recent
study by a New York state
public interest group found
that, of New York's 62
counties, at least 22 have
flow control, anj
counties, the resjg
as much as 54%3
dispose of a ton*
"Flow contra*
overriding)
tal defect: L
costs withou
any real correspo
environmental or
social benefit"
than their neighbors pay in
open-market counties.
Indeed, flow control is
really a hidden business
tax.
• Arguing that flow
control protects public health
and the environment is a false
issue. No one advocates
solid waste disposal at any
facility that does not meet
all relevant state and
federal environmental
regulations. Moreover, the
federal solid waste regula-
tions (Resource Conser-
vation and Recovery Act,
Subtitle D) that are
scheduled to become
effective in October 1993
will require that all
municipal solid waste
landfills in the U.S. meet
basic environmental and
public health standards. As
a result, flow control will
exposed more nakedly
for what it really is—
:onomic protectionism.
Flow control will not
develop substantial
and stable recycling
markets.
Government flow
control of recy-
clable materials
discourages
private sector
initiatives to
recycle because
the basic supply of
designated
materials will
always be at risk.
Flow control will
result in the
construction of subsidized
facilities that will compete
unfairly with non-subsi-
dized processing facilities
and artificially suppress the
true cost of recycling.
Rather than compete
unfairly with the private
sector's recycling infra-
structure, local govern-
ments should put their
energies into stimulating
the demand side of
recycling. The problem
with recycling today is the
lack of demand for the
collected recyclables by
contd. oa 124
ing
^CPTf UBfS 1 001 W»OT 1C*
-------
stable, long-term end users.
The private-sector
recycling industry is
committed to source
reduction and recycling to
the fullest degree possible.
Where competition is
prohibited by law or by
regulation, there is no
incentive to invest, innovate.
or create new recycling
options.
• Flam control takes away
the matte generator's right to
select disposalfaalities offering
the best service and providing
At highest level of environmen-
tal protection. If generators
have no choice under flow
control, there is little
incentive for the disposal
operator to improve service
or provide better environ-
mental protection. In
contrast, many disposal
companies that operate
under a purely free enter
prise system have imple-
mented standards that far
exceed Subtitle D regula-
tions. If generators.
transporters, and disposal
facility operators are to bear
the liability under
Superfund for clean-up.
then each should be allowed
to choose whom they want
to provide collection and
disposal services. Imposing
flow control takes away
freedom of choice without
reducing risk and stifles
incentive to continuously
improve environmental
protection.
In conclusion, flow
control is simply not
necessary. It has an overrid-
ing, fundamental deflect: It
drives up costs without
supplying any real corre-
sponding environmental or
social benefit. Stripped of
all of its justifying rhetoric,
flow control is nothing
more than the replacement
of open-market competition
with a monopoly that
eliminates generator and
transporter choice. That's
bad for industry, bad for the
economy, and bad for
consumers. I
-------
LEGAL
Flow Control Rises To The Top, Again
Less than one year after the U.S.
Supreme Court ruled unconstitu-
tional state and county solid waste
import restrictions, the court announced
that It will review a state court decision
that upheld an ordinance banning waste
exports. (C&A Carbone Inc. et ol u. Town of
Clarkstown, Docket No. 92-1402.)
Last August, an intermediate appeals
court in New York ruled that the Town of
Clarkstown. N.Y.. does not unlawfully
Interfere with Interstate commerce by re-
quiring all locally handled, non-recyclable
solid waste to be delivered to the
town's transfer station. The New ^m
York Court of Appeals, the state's
court of last resort, declined to con-
sider an appeal from that decision.
Carbone handles waste materials
from customers In New Jersey and
New York state, sorting the recy-
clable and non-recyclable compo-
nents, shipping the recyclables to
processors and sending the unrecy-
cled residue to disposal facilities in
Ohio. Pennsylvania and elsewhere.
Until July 1992. Carbone had a
state permit to operate a transfer
station which, by state law, cannot
handle recyclables. However, Car-
bone has a town-issued permit to
operate only a recycling center.
Faced with the state-ordered clo-
sure of Its landfill, the town engaged
Clarkstown Recycling to construct and operate an MSW
transfer station under terms that require the town to
deliver a minimum annual tonnage of acceptable waste.
At the same time, the town amended its zoning ordi-
nance to allow only one transfer station within the town
limits. The town also adopted the challenged ordinance.
which requires all "acceptable waste" generated within
the town limits to be taken to the town facility or to a re-
cycling center. All unrecycled residue from recycling
centers must be disposed at the town's facility.
In 1991. police Investigating a disabled tractor-trailer
on the Palisades Interstate Parkway discovered that the
vehicle, bearing Ohio registration, contained household
garbage from Clarkstown and from other in-state and
out-of-state sources. The police also confirmed that the
shipper was Carbone and that the 23-ton load was
headed for Indiana. Town police later saw other tractor-
trailers entering and leaving Carbone's premises, carry-
ing both local and non-local solid waste and headed for
the Midwest and Florida. The town promptly went to
state court requesting an order enjoining Carbone from
further violations of its ordinance. Carbone defended it-
self by arguing that the local law constituted an unrea-
sonable and discriminatory burden on Interstate com-
merce and a taking of property without due process of
By Barry Shanoff
The columnist is an envi-
ronmental attorney In
Washington. D.C.
In its petition, the
hauler argued that
flow control laws
are a matter of
national significance
because they burden
and discriminate
against interstate
commerce.
law. Carbone added that the ordinance
exceeded the town's powers because the
law was enacted for economic reasons In-
stead of public health and welfare.
The trial court granted the town's re-
quest for an Injunction, ruling that the
town law regulated solid waste "even-
handedly" to promote a "legitimate local
public interest" with only -Incidental" ef-
fects on Interstate commerce, and did not
deprive Carbone of any vested property
rights or put it out of business.
An appeals court agreed, stating that
the local law does not discriminate
against Interstate commerce, be-
cause the law "imposes no special
fees, taxes, prohibitions or duties on
those transporting out-of-state arti-
cles of commerce" and "applies
evenhandedly to all solid waste pro-
cessed within the town, regardless
of ... origin." Besides, the appellate
court continued. "The Commerce
Clause protects the interstate mar-
ket, not particular Interstate firms."
In its petition to the U.S. Supreme
Court. Carbone argued that flow
control laws are a matter of national
import because they burden and
discriminate against interstate com-
merce. Carbone also said that diver-
gent court opinions on the constitu-
tional validity of flow control made
the court's guidance necessary.
No confusion exists among lower federal and state
courts, said town Attorney Richard A. Gllckel in his
brief opposing Carbone's petition. The other cases deal
with final disposal of waste, he noted. "|A|U of the town's
solid waste re-enters the stream of Interstate commerce
following compaction and baling at the transfer station
without Impact on out-of-state Interests." said the brief.
"Whether the non-recyclable waste is moved by
Clarkstown or Carbone. it still has to be moved because
Clarkstown has no landfill," Glickel told an Interviewer.
The court will hear oral arguments after its 1993 term
begins In the fall. A decision is expected by next spring.
Veto Power. Passing the buck on waste facility siting
decisions Is now official policy in North Dakota. Gov. Ed
Schafer has signed into law a measure that will give lo-
cal residents the right to veto state solid waste manage-
ment permits. Thus, even after state officials decide that
a proposed site has the right characteristics and the
proposed facility Incorporates state-of-the-art design
and operating features, they must notify the county
commissioners of the host county. The commissioners
may then call a referendum on the facility, leaving its
fate to a simple majority of the voters. The process sug-
gests a possible new meaning for the term "final cover."
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SOLID WASTE OUTLOOK
The Importance Of Educating State Legislators
The Time For Propaganda Is Past-Policymakers Now Need Real Information.
In the last two yean, municipal
solid waste management in the United
States has provided a fascinating look
at hOW an *>"f>Honally^hargf^j JBSW
can cause legislators from the federal
down to the local level to eschew eco-
nomic sense in favor of political cor-
rectness. To a certain extent, this is
unavoidable-representatives should
echo the will of their constituency,
and if the people do not care for a
project or proposal, their representa-
tive should do his or her best to op-
pose it. But if the people are not prop-
erly informed-or even misinibrmed-
on an issue such as solid waste man-
agement, it is then incumbent upon the
representative to become acquainted
with the issue. Only then can represen-
tatives make the decisions which are
best for the people.
Whether America's state legisla-
tors and state environmental regulators
like it or not, the role of waste dis-
posal management ha* been turned
over to tiuaii- In the manner and
method of its promulgation of
RCRA's Subtitle D, the federal Envi-
ronmental Protection Agency has, in
effect, put distance between itself and
the problem of landfill management,
forcing the states to act in its stead. In
many cases, the states have been un-
prepared to take on the burdens of
oversight and enforcement which the
EPA has thrust upon them.
As is too often the case in bureau-
cratic matters, several states have at-
tempted to supersede regulation with
legislation. Perhaps the most short-
sighted legislators in the country oc-
cupy seats and positions of influence
in the Rhode Island legislature, where
an element managed to force into law
a ban on municipal solid waste incin-
erators and an economically harsh 70-
percent recycling rate. The law imme-
diately spurred a lawsuit from Ogden
Martin Systems, which had spent mil-
lions developing an incinerator project
in the state.
Down the road, the law will cause
severe problems across the state as the
recycling advocates in the legislature
come to realize that the state does not
have the markets, funds or enforce-
ment mechanisms in place for recy-
cling on the massive scale which has
been mandated. Recent reports indi-
cate that even the city of Seattle,
Wash., long touted as a recycling
leader, has "only" achieved a rate of
42 percent—far better than any munici-
pality its size, but far short of the 70
percent that Rhode Island legislators
seek to reach.
This column has already docu-
mented the dangers inherent in relying
on recycling as a panacea for
America's waste disposal ills. The
costs are often prohibitive, the markets
unstable or nonexistent. The same
danger can exist in believing that leg-
islative action upon legislative action
will stem the problem. Education is
the key. Just as driving a car does not
make one qualified to build an auto-
mobile, so does the simple act of sepa-
rating recyclables not make one
enough of an expert to legislate recy-
cling goals based more on political
than economic aims.
In much the same fashion, repre-
sentatives must not let the opinions of
a few outweigh the needs of the many.
Landfills, transfer stations and incin-
erators are among the most unpopular
of municipal projects. But banning
them outright is shortsighted and im-
prudent for the economic health of the
local government. Long-distance waste
disposal can be a crippling cost, just as
host fees from a nearby facility can
bring economic benefits to host gov-
ernments.
This column, like this newsletter.
neither endorses nor denounces land-
fills and incinerators as a means of dis-
posal. In many locations and in many
economic climates, neither is appropri-
ate. However, there are just as many
instances—most recently in West Vir-
ginia and South Dakota-where state
legislators vetoed major disposal fa-
cilities, much to die disappointment of
the rural residents in the distant com-
munities which would have benefited
from the facilities.
Waste disposal management
moves at a slow enough pace-permits
take yean to acquire-that projects can
be judged on their individual merits.
Legislators who seek to involve them-
selves in environmental and waste dis-
posal matters should seek to study all
available materials from all sources-
not merely those which support a pre-
conceived position. The opinions of
environmental organizations are often
well-researched, but must be taken
with a balanced view, as must the pub-
lic statements of disposal companies
seeking to site facilities-each, natu-
rally, has its own agenda.
Through the federal EPA's deci-
sion to pass the football of solid waste
management to individual states, state
representatives have been given a great
deal of power. Unlike their federal
counterparts, stale representatives have
much closer contact with their con-
stituencies. While such contact allows
state representatives to more truly re-
flect the feelings of their people, it can
also perpetuate years-old biases against
such unpopular programs as waste dis-
posal.
In recent years, because of tech-
nological and regulatory advance-
ments, waste disposal as an industry
has advanced far beyond the toxic
"town dump' era. State legislators
must recognize this advancement, even
if many opposition groups do not, and
take it upon themselves to make the
best decisions, not just the most popu-
lar ones. Waste disposal is a changing
industry. Policymakers must recognize
that change, or their constituencies
will pay heavily in the years to come.9
12
Solid Waste Digest
Southern /August 1993
-------
rv.- -:
I i
\\\
'\\
I MORCROSS
CONFERENCE OF SOUTHERN COUNTIES, ASSOCIATION
P. O. BOX 2486
PEACETREE CITY, GEORGIA 30269
SEPTEMBER 1993 - SECOND EDITION
i',
Many thanks to Buddy Sharpless and his folks for hosting the
September meeting. Everyone enjoyed the hospitality and the agenda
items were all accomplished. Deanna and Jim will be in touch with
the following members who could not attend for follow up on the
survey questions - Florida, West Virginia, and South Carolina. You
folks missed an excellent meeting - we missed you and hope you can
make the next scheduled meeting. This newsletter will focus on
solid waste TRENDSI.
WORLD WASTE - AUGUST 1993
GEORGIA CITY TO TEST VARIABLE
RATE SYSTEMSS
The city of Marietta, Ga.
is scheduled to start Jan 1994
a pilot for variable rate col-
lection. This is the most com-
prehensive effort to monitor
volume based "pay-as-you-throw"
systems.
Four types of variable
rate systems will be studied.
Residents will pay for the
volume of garbage they dispose
by purchasing:
* Special bags for a price
that reflects the cost of
disposal
* Stickers to be placed on
residents' own bags
* stickers to be placed on
residents7 garbage cans
for an extended period of
time; or
* stickers to be placed on
varying sizes of cans.
The pilot is being funded with
an EPA grant.
Several areas will be mon-
itored to gauge the effect of
each variable rate disposal
method. First, questionnaires
on disposal habits will be sent
to families before the start to
establish baseline data; after
the conclusion the data will be
used to see how habits have
changed. Secondly, the
quantity of waste disposed at
each household will be measured
by weight and volume before and
after the variable rate pilot.
Thirdly, recycling data will be
collected to determine the
affect of variable rates on
recycling programs. Finally,
commercial dumpsters will be
examined to detect any illegal
dumping by residents trying to
avoid disposal fees.
About 2,500 residents will
be using each method and the
city has launched an extensive
public education campaign to
support the program.
The length of the program
has not been determined but is
expected to last a year to
account for seasonal variations
in the waste stream.
-------
LBQZ8ULXZOH
BnvironMntal Equity coaoaxaa
*riM ia coagrttai
Environmental protection
for minority groups is expected
to be a HOT topic in Congress
this season.
Revised legislation is
expected modeling a bill sub-
mitted last year by then -
Senator Albert Gore, Jr. and
Congressman John Lewis D-Ga.
Check S.2806 submitted last
year. The bill is expected to
be re introduced this year by
Rep. John Lewis and Sen. Max S.
Baucus, D-Mont. The bill will
require EPA to study and rank
the 100 worst places to live
and work based on risk from
toxic chemicals in the environ-
ment. The bill will permit
citizen suits against an
individual, entity, including
the federal government, who
uses race, income or ethnicity
as a deciding factor in siting
or licensing a facility.
Another item of interest
is that proposed amendments to
the EPA Cabinet file would
create an Office of Environ-
mental Justice and an advisory
committee on racial and ethnic
impact. It would compel the
agency to conduct research on
the relationship between
pollution and the racial,
ethnic and economic make-up of
affected areas.
Although there are no
current civil rights cases
produced for a single success-
ful environmental equity case,
the Lawyers' Committee expects
things to change as more cases
are brought to court.
Meanwhile, the U. S. Com-
mission on civil Rights will
soon finish its probe of EPA
enforcement in minority and
poor communities. The probe
will reflect on pollution along
the Mississippi River and how
petrochemical plants dispro-
portionately affect minorities
and the poor.
WORLD WASTE - JULY 1993
UkMDYXLLS
Landfill Mining Off«rs
Rcoyoling on % Grand Seal**
Although a recent proposal
to reclaim land in South Wales
by landfill mining was turned
down as too costly, findings in
landfill mining in Florida sug-
gests that the concept might be
feasible after all.
Collier County, Florida
has been successfully removing
landfill material for 6 years.
Collier County is currently
excavating material deposited
from 1976 to 1979 to a depth of
18 feet. Although the 43 tons
per hour rate is considered
low, it is due to the fact that
the program is fitted within
other waste disposal needs.
The processing potential is 150
tons per hour.
A crucial factor in land-
fill mining is stability and
state of degradation in the
site. Florida's high water
table means that solid waste in
landfills degrade rapidly and
before undertaking excavations,
other landfills should follow
the same testing process using
core samples to assess site
stability.
There are a few other
sites in the US that are land-
fill mining or undertaking
feasibility studies. There are
currently seven in New York and
one in Lancaster County, Pa.
The Pa. site is linked to the
region's waste-to-energy plant.
Excavated residues that can't
be sold or used as cover mat-
erial are burned at the plant.
-------
Other landfill mining benefits
include ;
* Generating revenues from
sales of recovered materials.
Admittedly low at this time.
* Gaining air space in land-
fills - increasingly scarce.
* Avoiding or reducing high
landfill closure costs.
* Escaping the lengthy and
costly route of acquiring new
landfill space over opposition
by the public.
* Reducing transport costs
of importing cover soil or
sand.
* Provides the opportunity
to check the security of land-
fill liner systems.
* Preventing pollution from
old unlined sites & upgrading
poorly managed sites.
statta Try out
Landfill Bans i
Currently, it appears that
47 states have passed some kind
of landfill or incinerator ban.
The bans are diverting hazard-
ous wastes and encouraging pro-
grams of recycling and alter-
native disposal methods.
A 130 page report titled
Disposal Bans in America:
who's Banning what and Why from
Raymond Communications, River-
dale, Md explains the survey
conducted by telephone with 50
state officials and 110 local
governments or landfill opera-
tors. The bans are divided
into three categories based on
volume (yard wastes, refrigera-
tors and similar bulky items) ,
recyclability of materials
(paper and packaging) , toxicity
(such as lead acid batteries).
According to the report,
several states and municipal-
ities have been testing bans on
recyclable materials. Rhode
Island, Massachusetts, South
Dakota and Wisconsin have laws
restricting long lists of re-
cyclables from disposal. North
Carolina has one of the most
effective bans on corrugated
containers and related scrap.
Some of the counties in indust-
ial areas have reported a 40%
tonnage reduction when they
kept out commercial and indust-
rial corrugated materials. The
bans forced the industries to
ship the material to recyclers.
The bans appear to be
effective when complementing an
existing recycling program or
forced an issue with local
businesses.
WASTE AGE - AUGUST 1993
8upr«M court to Decide
Ash Issutt
The Supreme Court will
rule on a dispute between two
circuit courts that have pro-
duced conflicting decision on
the issue of incineration ash.
The concerns are whether
ash from the incineration of
municipal solid waste should be
considered non-hazardous or
hazardous. At the heart of the
matter is whether ash is sub-
ject to RCRA regulation. At
question is section 3001(i),
which exempts municipal incin-
eration from hazardous waste
requirements, provided they
receive only non-hazardous
household, commercial, and
industrial waste. The question
extends around the ash generat-
ed by the burning of the mater-
ial. A decision is not expect-
ed until next Spring. Oral
arguments due in Dec or Jan.
-------
In closing, an article from the Birmingham Post-Herald dated
September 10, 1993 is enclosed for your information. This is the
type of information we need to be sending to the membership; there-
fore, please send anything you find in your local papers to me for
distribution. You will note that somewhere in the contract between
the City Council and BFI this issue was apparently not addressed.
Calhbun leaders trash BFI
plan to build transfer site
By David Ford
Pwt-HtnM CbrrapondCBt
ANNISTON — The Calhoun
County Commission has "declared
war" on a plan by Browning-Ferris
Industries to build a garbage trans-
fer station in a residential area west
of Anniston,
Conunuskmera said the; were sur-
prised when a letter outlining the
plan was hand-delivered to them late
Wednesday. Commissioners said
they plan to fight the project
"They don't care about the people
in that community ... all they care
about is their bottom line," Commis-
sioner Don Curry said.
But BFI District Manager Brian
Wintjen said the company does care
about the community.
"By building our own transfer sta-
tion ... we can probably have a de-.
crease in the cost of disposal and
pass that along to the people," he
said.
The county is constructing its own
$300,000 transfer station at the
county landfill. The landfill operation
will close next month when strict
regulations regarding landfills take
effect.
Last week the commission an-
nounced that it would charge private
companies $36 a ton to dump gar-
bage at the transfer station. Wintjen
said that was too expensive.
In spite of their opposition, com-
missioners said they are not sore
they can block the project "I don't
know that legally we've got the
means to stop it," Commissioner
Phillip Pritchett said.
•fj wi«
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CONFERENCE OF SOUTHERN COUNTIES, ASSOCIATION
P. O. BOX 2486
PEACHTREB CITY, GEORGIA 30269
SEPTEMBER 1993 - FIRST EDITION
*****************************************************************
*****************************************************************
Congratulations to Jerry Griffin, our new chairperson and many
thanks to Sam Seale and Ron Aycock, our past chairpersons for their
leadership and accomplishments. This edition will be devoted to
enforcement, legislation, insurance issues (liability), etc.
BPI, Inc. July 26, 1993
EPA OFFICE OF BHF<
Browner Brings Back EPA's
BAD COP in Enforcement Office
Reorganization - after past EPA
Administrator Anne Gorsuch dis-
mantled the Enforcement Office
12 years ago, the new EPA
Administrator within the next
90 days will undo the Gorsuch's
controversial stripping of the
Enforcement Office. Currently,
the enforcement activities lie
with the program offices.
Under this system program
personnel were responsible for
both trying to work to obtain
improvements by regulated com-
panies and then pursuing civil
penalties if necessary. Under
the NEW setup the enforcement
personnel will be a singularly
focused BAD COP seeking to
impose penalties.
Hopefully the real purpose
is that everyone will get a
very clear signal as to what
the enforcement policies will
bei
Environmental Policy Alert -
June 9, 1993
XKCXHBR&TXONt It appears the
hottest game in town is over
EPA's moratorium on permitting
for new construction or expan-
sion of municipal solid waste
incinerators.
In an attempt to expand on
EPA's new guidance for waste
incineration, Reps. Edolphus
Towns (D-NY) and Bill Richard-
son (D-NM) will introduce
legislation for a moratorium on
permitting for new construction
or expansion until 1997. It
expands Rep. Peter Kostmayer
(D-PA) previously submission to
include provision to prevent
siting of facilities near
schools or in minority neigbor-
hoods.
EPA's new guidelines for
waste minimization for treat-
ment facilities and generators
under RCRA include: new dioxin
emission standards for incine-
rators and boilers and
industrial furnaces, and more
stringent controls in permits
for particulate matter to
control lead, cadmium and
mercury emissions.
Neither Congressional nor
industry sources believe the
bill will pass on its own
merit, but may be included with
-------
RCRA reauthoriztion next year.
In the center of this
issue is the Waste Technologies
Industries (WTI) controversial
hazardous waste combustion
facility at East Liverpool, OH.
W&8TB XHCXHEB&TXOVl Should th«
nov policy apply to 1TX
Since the ruling by Judge
Ann Aldrich of the US District
Court on March 5 to allow an 8
day trial burn and to let the
facility enter into a limited
commercial operation for one
year, with an appeal from
Greenpeace and other citizen's
groups,it appears to have put
the facility in CATCH 22!
She stated the facility would
present a significant threat to
human health and the environ-
ment. Environmentalists claim
it opens the door for EPA to
close the operations under RCRA
authority to protect health and
the environment.
The Clinton administration
states that they are "legally
obligated11 to uphold federal
court and Bush administration
decision to allow limited
operations.
It appears the issue comes
from the fact that the facility
was in operation prior to the
New Policy and if in compliance
it should not be closed. How-
ever, environmentalists say it
should be under the new rule
because there was no final
permit.
BUBHXMQ - CXRC
MBW BP& VOLXCTt
Cement Kiln Recycling
Coalition (CKRC) representing
24 operating cement kiln is
claiming EPA violated the
Administrative Procedures Act
by skirting public notice and
comment before issuing new
incinerator guidelines.
The new policy is expected
to hit the industry hard and
legal action is expected. A
former EPA attorney indicated
that CKRC has a case because
"EPA has a passion for doing
rulemakings through informal
guidance documents.11 This is
done to skirt the formal
rulemaking process to avoid
review by the Office of Manage-
ment and Budget (OMB).
Inside EPA - superfund Report
July 28, 1993
Environmental Policy Alert
June 9, 1993
8UPBRFUHD REAUTHORIIAT1OH*
EPA Administrator Browner's
efforts to block piecemeal SF
legislation may kill any chance
for passing a bill to protect
municipalities from Superfund
liabilities.
The Senate approved limits
to municipal liability last
year over industry objections
and is expected to resurface as
a key part of the Superfund
reauthorization in this
Congress. The liability limits
cleanup cost to 4 per cent of
total cost. It would prevent
industrial parties at Superfund
sites from suing cities for
cleanup costs. Legislation has
already been introduced in the
House and Senate to codify the
4 per cent solution.
Municipal liability:
* Sen. Frank Lautenbery
(D-NY) bill number 8. 963
* Rep. Torricelli (D-
NY) bill number H. R. 2137
compares to 8. 963
* Rep. Chris Smith (R-
NY) bill number H. R. 541
includes transportation. Bill
referred to House Energy & Com-
merce also Public Works and
Transportation committees.
-------
Superfund Report July 28, 1993
INSURANCE* HT High Court R«fU»«
Pollution Exclusion -
New Jersey's highest court
unanimously declined to apply
the pollution exclusion found
in comprehensive general liab-
ity insurance policies. The
clause was written into CGL
policies in the 1970's and
grossly misrepresented the
effect of the exclusion. The
ruling opens the door for NY
business and local governments
to recover millions of dollars
in pollution damage costs. The
case in question that opened
the door is MORTON V GENERAL
ACCIDENT(Sup Ct Of NJ July 21,
1993 A-28/29)
Qrmlual Pollution not oov«r«4
by COL policy -us ftppoala Ct.
In another case the 10th
Circuit found in favor of
insurers saying, "Sudden and
accidental is unambiguous and
has an objective temporal
meaning". The Court ruled that
pollution by Morrison was not
sudden and accidental, "But a
gradual dispersal or release of
toxic chemicals or waste
materials which ought to have
been anticipated and avoided".
This was the result of SF
cost recovery by EPA against
Morrison who filed claims to
their insurance carrier.
(U.S. Fidelity & Guaranty Co.,
et al. v. Morrison Grain Co,
Inc. US Court of Appeals for
the 10th Circuit, No 90-3123,
July 19, 1993).
Another similar case is
(Dimmitt Chevrolet, Inc. et al.
v. southeastern Fidelity
Insurance Corp., Supreme Court
of Florida, No. 78,293, motion
filed July 16, 1993.) Deals
with Peak Oil SF site that
Dimmitt Chevrolet was involved
in and settled with EPA. Same
issue over "sudden and
accidental".
MUNICIPAL LIABILITY CASE
B. 7. Goodrich Co., et al., v
harold Murtha, et al., v.
Ridson Corp., et al, u. a.
District Court for Conn, N-87-
52. Ruled that municipal trash
is potentially a hazardous
waste under the SF law, stating
that despite the "burdensome
consequences" of such a desig-
nation, an exemption for cities
and towns would thwart the
language and purpose of the
statue. The Laurel Park Coal-
ition has settled with 75 part-
ies and has made offers to 700
parties. LITIGATION CONTINUES
CONGRESSIONAL BILLS
WITH INTERSTATE WASTEt
8. 443 Communities and HAZ
waste processing facilities .
H.R. 1052 collecting fees or
banning importation of SW
S. 439 & H.R. 1076 limit inter-
state shipments of hazardous
waste - state authority to
restrict shipment.
H.R. 963 is a compromise of the
above bills.
H.R. 105 prefers state officials
H.R.599 calls for state com-
pacts on municipal SW flow.
H.R.766 £ 768 would ban inter-
state hazardous waste trans-
portation and would require
states to pay other states for
cleanup costs.
8.822 would reduce and regulate
the interstate transportation
of solid waste.
-------
In closing, there are two articles enclosed for your
information. The first is from WORLD WASTES (Aug 1993) by Barry
Shanoff on a LEGAL issue. The second is a SF work profile on the
Peach County Georgia municipal landfill site Powersville as you
can see there are many issues pending take will effect the way you
do business — stay tuned for updates on environmental issues 1
Keeping The Road Less Travelled
city may use Its authority over
ds to prevent truck access to a
posed landfill, according to a
ruling by the Iowa Supreme Court.
The Des'Molnes Metropolitan Area Solid
Waste Agency was created In 1969 to pro-
vide solid waste management services for
Polk County, Iowa, and other local mem-
ber governments Including the city of
Grimes. In 1972. the agency purchased a
160-acre site southwest of the city for a
landfill. The Polk County Board of
Supervisors granted a zoning permit to
the agency to operate a landfill on
the site. The city legally challenged ••
the permit, but the Iowa Supreme
Court upheld the county's decision.
When the agency bought the prop-
erty. Polk County controlled the ad-
jacent roads. However, as the permit
challenge made its way through the
courts, property owners around the
proposed landfill site, one by one.
voluntarily annexed their land to the
city. Therefore, the roads in the an-
nexed areas came under the city's
Jurisdiction. The city passed an ordi-
nance Imposing a seven-ton weight
limit on gravel roads surrounding
the agency's site, which effectively
blocked the operation of the landfill
due to the excess weight of waste
transport trucks. The property never
saw use as a landfill.
In 1989. the state legislature passed a law requiring
that yard waste be separated from garbage and not
landfllled. The time was right, the agency thought, to
use the dormant site for a compost facility. County zon-
ing authorities agreed, and. over the city's objection, ap-
proved a permit for composting on the site. The city ap-
pealed the zoning decision to the supervisors who up-
held the ruling but directed the agency to study the traf-
fic on the access road. 54th Avenue, and to pay for up-
grading the road. The city promptly went to court, chal-
lenging the propriety of the zoning decision. The agency
decided to test the constitutionality of the city's weight
restriction. The trial court dismissed the city's chal-
lenge, but upheld the validity of the ordinance.
On appeal, the agency argued that the city passed the
ordinance for an Improper purpose: to stop the agency
from creating a landfill on Its property. Incidentally, the
agency contended that the city's stated purpose, main-
taining Us gravel roads, was merely a pretext. As the
agency saw It. the ordinance was an arbitrary, unrea-
sonable and Improper use of government authority.
The state supreme court answered these claims by
noting that the U.S. Constitution protects Individuals
and agencies from the arbitrary actions of government.
However. "fTIhe oartv challenging an ordinance has thr
By Barry Shanoff
The columnist is on envi-
ronmental attorney In
Washington. D.C.
Refusing to
decide if the weight
limit was meant to
defeat the landfill or
to protect roads, the
court ruled that the
possibility of the
latter was enough to
satisfy due process.
burden of proving It unconstitutional and
must negate every reasonable basis upon
which the ordinance may be sustained.
When the reasonableness of a city ordi-
nance Is questioned, the ordinance will
be presumed reasonable ..."
The court observed that the weight-
limit ordinance was derived from a stale
law giving local authorities the power to
limit the weight of trucks on local streets
and roads. Former city council members
had testified that the ordinance was
adopted to prevent the opening of a land-
flll on the site, but also to help
• maintain the nearby gravel roads.
Refusing to speculate on whether
the real reason for the weight limit
was to defeat the landfill or to pro-
tect roads, the court ruled that the
mere possibility of the latter motive
was enough to satisfy due process.
As the high court saw It. a key
Issue was whether prohibiting
heavy trucks was "rationally relat-
ed" to protecting the access roads.
At trial, experts testified that the
use of heavy trucks to transport
waste would Increase the costs of
maintaining the gravel roads. The
trial court had found that the city's
small street budget could not cover
the annual costs to maintain, re-
build and control the dust on 54th
Avenue. Reason enough to sustain
the ordinance, said the supreme court.
The agency also argued that the ordinance was in-
valid because the weight restriction did not apply on all
gravel roads In the area. Including parts of 54th Avenue.
Deferring again to the city's experts, the state high court
ruled that the ordinance did not discriminate against
the agency because the weight limits would help pre-
serve the roads. Finally, the agency argued that the
weight limits on 54th Avenue denied It access to Its
property, thus precluding the use of the property as a
compost facility. Such a restriction, the agency rea-
soned, conflicted with the state law prohibiting the land
disposal of yard waste.
The trial court found that the state law did not re-
quire local communities to establish composting facili-
ties. The high court acknowledged that the ordinances
kept a facility from being operated on the property, but
blocking the establishment of a composting facility does
not frustrate the purposes of the state law. "Section
455D.9 simply states that the Department of Natural
Resources shall assist local communities In establishing
compost facilities and that yard waste should be sepa-
rated from solid waste." said the court. The law does not
guarantee, as the court saw it. that any particular faclll-
tv QHatl K^ 1rx/*afoH fn arm r*ai-HfM»lo,- r>lno»
-------
&EPA
United States
Environmental Protection
Agency
Solid Wast* and
Emergency Response
(5502Q)
EPA520-F-93-005
Spring 1993
Superfund At Work
Hazardous Waste Cleanup Efforts Nationwide
Success In Brief
Pesticide Contamination
Addressed At Powersville
Dump Site
Potential Range o* Health 1
Direct contact with contaminants
could cause skin rashes or <
150 people within one mile
Orchards, crop* and livestock
Coogreeaional District 3-
The US. Environmental Protection Agency (EPA) encountered
much more than a municipal landfill at the Powersville site in Peach
County, Georgia. Contamination from improperly dumped hazardous
wastes and pesticides tainted an old quarry used for household gar-
bage. Chemicals migrating into area ground water threatened local
drinking water supplies. To address these issues, EPA's Superfund
program designed a cleanup strategy that included:
• Negotiating with the county and chemical companies to contain
the hazardous wastes on site underneath a protective cover;
• Investigating reports of drinking water contamination and
extending municipal water lines to affected residents; and
• Conducting a tailored community relations program, to inform
and educate residents about the site.
EPA's Superfund program effectively halted the further migration of
contaminants into the environment and ensured the safety of future
drinking water supplies.
Pesticide Contamination At Powersville Dump
Sand and gravel quarry
!i actMtte» for 30 yearn
Urzlo Chapel Baptist
Church wail water i
contaminated
Household wastes,
pesticides and chemical
by-products dumped
Contaminants migrate into soil and ground water;
aquifer and waits threatened.
The Site Today
A multi-layer synthetic cover was
completed in 1992, and is containing
wastes at the site. Construction has
been completed to extend municipal
water lines to homes with affected
wells.
An alternate drinking water
supply will become available in
spring 1993, and final inspection is
scheduled for fell 1993.
-------
Superfund At Work • PowarevlHe Pump. Peach County, 6A
Spring 1993
A Site Snapshot
The Powersville landfill
covers 15 acres in Peach
County, Georgia. The sur-
rounding area is m—am
mainly agri-
cultural, used
for orchards and
raising live-
stock. The Lizzie
pesticides and chemical by-
products at the site.
The landfill's floor is com-
MIMHBBMMM posed mainly of
sand and gravel,
allowing water
and contami-
nants to move
freely through
Vinyl chloride, zinc,
copper, lead and
pesticides
migrated Into
Chapel Baptist ground water and soil the soil. Vinyl
Church is •^••••••••••••••••B chloride, zinc,
adjacent to the site, and about copper, lead, and pesticides all
150 people live within one mile, migrated into ground water
Sand and gravel were quar- and soil. Fifteen area drinking
ried at the site from the early
1940s to 1969. That year, Peach
County began using the quarry
as a sanitary landfill For 10
years, the landfill received
primaiily.household wastes.
An undetermined number of
companies also disposed of
wells and the aquifer under-
neath the site were threatened.
Contact with contaminated
soil could cause skin rashes or
respiratory problems. Drinking
affected water could have led
to an increased risk of cancer in
both residents and cattle.
For nearly 30 years, the
Powersville site was a sand and
gravel quarry that supplied
construction materials. In 1969,
when other county dumps were
full, Peach County began using
the pit as a landfill for household
and industrial wastes. The site
received wastes daily.
Disposal and maintenance
activities were monitored regu-
larly by county officials. During
this time, an unknown number of
companies also dumped pesti-
cides, their containers, and chemi-
cals used in pesticide production
at the site. Such practices were
common then, since the dangers
of pesticides were not widely
recognized.
Powersville Dump
Timeline
DNR orders landfill closed
• Superfund enacted
• Peach County constructs
separata hazardous waste area
;* Georgia's ONR discovers
- uncontrolled pesticide disposal
r •
Site operatBS^as'sand and
gravel quarry
1
Site operates as municipal landfill,
pesticide disposal site
1d40
1969 v
1972 1973
1977
1979 1980
-------
SupiriundAtWork • Powewvlllt Dump, Patch County, GA • Spring 1993
raste
Many of these pesticides have the obvious disposal of pesticides
since been banned from domestic at the landfill and recommended
use. The production, sale and use that a separate hazardous waste
of DDT, for example, was banned disposal section be created so that
in 1972. At this time,
a wide range of other
environmental issues
was becoming part
of the national con-
sciousness.
Early Efforts
Protect Environment
and Citizens
During a routine
inspection in October
1972, Environmental
rOMftvlllt
Peach County. QA
pesticides could be moni-
tored and controlled.
In the summer of
1973, following EPD's
specifications, Peach
County officials
a
separate one-
acre area for
the hazardous
wastes. They
lined it with five
feet of day and ran
Protection Division (EPD) officials trenches through the area to
from Georgia's Department of collect runoff and prevent pesti-
Natural Resources (DNR) took a cide migration.
new look at the Powersville Without these precautions,
dump. EPD voiced concern over contaminated rain water could
either have seeped into the soil
and ground water or run off the
site onto surrounding land. The
county also enclosed the area
with a cyclone fence, and posted
warning signs.
In March 1977, EPD recom-
mended that further disposal of
these pesticides at the site be
prohibited and asked the Peach
County Board of Commissioners
to dose the landfill The EPD
expressed concern that despite
the precautions taken, the sand
and gravel floor could still permit
chemicals to filter into soil and
ground water, threatening drink-
ing supplies. In early 1979, the
county stopped accepting all
wastes at the site.
^**B
r
• Residents complain of odoo
^oi. water
Slate requests EPA assistance-'- .>*.
Site few on I
h A ^ft^ fi^ut^^^Mu4V4^^4iMvUk^SM»A
-m wUwIWWNBUIMiyWU1Wf
r
J& Constnjcbon of cap begins
Cap completed
Alternate water
supply constructed
(planned)
1983 1984 1985
1987 1988'
1991 1992 1993
3 —
-------
Superfund At Work « Powenvill> Dump. Peach County, GA
OnTheHorizon An expansive vista of cleanup activities at the
Powersville site. "Die white building visible near the site is Lizzie
[b Chapel Baptist Church.
Sute Officials Detect
Ground Water Problems
While the Powersville dump
was still accepting wastes, local
residents complained to EFD
about foul odors and wastes
blowing from the site. They also
reported mat their drinking water
tasted bad and was often discol-
ored. In 1983, EPD began sam-
pling area wells for contamina-
tion, and found that a well at the
By August 1983,
EPD officials
recommended that
church members stop
using their well water
church next to the site was con-
taminated with trace levels of
pesticides.
In May 1983, EPD sampled
several other wells in the area, but
none showed evidence of con-
tamination. EPD analysts re-
tested the church well, and found
that the contamination levels had
increased. Contaminated ground
water was moving from under-
neath the site and affecting the
church's drinking supplies. By
August 1983, EPD officials recom-
mended that church members
stop using their well water.
EPD then contacted the EPA
Superfund program for assis-
tance. This national cleanup
program had been launched in
1980 in response to widespread
concern about hazardous waste
sites around the country.
EPA's Site Study
Assesses Threats
In response to the state's
request, EPA proposed
Powersville to the National
Priorities List (NPL), the nation's
roster of hazardous waste sites
eligible for cleanup under the
Superfund program. In Septem-
ber 1983, EPA began studying the
ground water problem by moni-
toring the site and the surround-
ing area to determine whether the
contamination was spreading,
and if so, how fast Samples from
monitoring wells confirmed that
ground water beneath the site
was contaminated with pesti-
cides/metals and vinyl chloride.
Based on these findings, the site
was officially listed on the NPL in
September 1984.
EPA's Community Relations
Allay Local Concerns
Concerned by the sampling
results, residents asked that their
wells be re-tested and EPA
complied. Samples revealed
extremely low levels of contami-
nation in some private wells.
The levels of contaminants
were within the safety standards
set by the Safe Drinking Water
Act. Nevertheless, Superfund
staff wanted to reassure the
community as to the accuracy
of the testing. Thus, EPA re-
quested that the Centers for
Disease Control (CDC) review
sampling results to ensure that
the drinking water posed no
threat to residents.
In April 1985, CDC confirmed
EPA's findings; there was no need
to provide an alternate water
supply to the community.
This outside analysis was just
one of the many extra steps
Superfund staff took tosatisfy the
concerns of area residents. Parties
responsible for the contamination at
the site also played a role in ad-
dressing cornmunity concerns.
Their efforts led to community
support for Superfund activities at
Powersville (see Community
Relations on page 5)
O.n. J
-------
Suoenuna AI worn • -;pA8fSvnle I)JPD, H'eacr v-.
Capping tne S•'•:
-::-r-:tec!vecov.?':•.=•-•- • ••• ;•
prevents me spread of contanr *.*•?
1
EPA Negotiates at Powersville
One of the objectives of the
nipertund program is to obtain
private part\- commitments to
:loan up hazardous waste sites.
Curing preliminary investiga-
tions, EPA identified some of the
EPA undertook
investigations
at the Powersville site
parties who were responsible tor
.uzardous wastes at die
Powersville site. One was Peach
County; another was Canadyne
oeorgia, wliich owns Woolfolk
Cliemicals.
EPA began negotiations with
them to perform studies at the site
and to develop cleanup options.
However, these negotiations
ended unsuccessfully so EPA
undertook the site investigations.
The Cleanup Plan
Following those studies in
September 1W, EPA chose ,->
cleanup approach which included:
• A multi-layer synthetic "c\ip"
to cover the site and to prevent
rain water from spreading
contaminants;
• A channel to keep rain water
off the cover and away from
the hazardous wastes;
• On-site monitoring wells to
allow scientists to track the
nature and movement of
contaminants; and
• Extension of municipal water
lines to serve area residents
with affected wells, even
though contamination was
within acceptable drinking
water standards.
EPA then successfully negoti-
ated with the responsible parties
to perform the design and con-
struction of cleanup activities.
Under EPA supervision, they
began designing the protective
cover in December 1988, and
completed it in January 1991.
Community
Relations /
Powersvill :
• A Constant Vigil -
The site m.iruger ov; "•
"V.; criv-trurfion ,i^r:' ,:
beCcHiK' .ill iVtive, mcl:,:
of the community. H-
interacted with citizens • >•
a daily basis.
• The Observation Deck -
iup"
•er fronn which
ivities. •'•
• discussion of Plans -
-In-August 1987, EPA held
, - a public meeting to'discuss
'^the proposed comprehen-
• ••'^Mve cleanup plan for the
, :£i£frJ!his ailow^i EPA to
"V fcv^^C*^t /*" ""• * * • ' 'w • '• * * '
ity Relations
Activities -
A strategy was worked out
witjj.the public to allow
tO'Cfetain information and
• -getfrequent updates
• Progress Meetings _«r-v
1991J Superfunc
an open house to
any questions the
^'rcommuni ty •had about .
'\i xaigoing cleanup.'acidvitie&
.5,'jpacc^to-Face Discussions -
staf&nersanalK
0-.no
-------
Cleanup Nears Completion
The Protective Soil Cover
Following completion of the
-.M'otechve cover, extra monitoring
nellMvere installed in 1992
Samples are now taken quar-
wly to test the ground water. The
-ite's future uses will be limited to
ensure that the cover's integrity ts
not compromised. The site will be
monitored for 30 years to verify
that no future problems anse
The Superfund program may enlist
the help of the State ot Georgia to
oversee these activities.
The Water Supply
The parries conducting the
cleanup started installing new
water lines in 1992. Water lino
extensions were completed in
March 1993.
The new lines extend from
the municipal water system ot
the town of Byron nearby. All
affected residences had an oppor-
tunity to be connected free ot
charpc prior to March 19*53
For additional copies 01 this or ocner Suoerlune AI work i/noaies contact me
National Technical Information Service U S Deoanmem ol Commerce
5285 Port Royal Road. Springfield. VA 22161 te'eohone (7031 487-4650
it you wish to be added to or deleted from our nr-nihng list
or 10 comment on mis Bulletin's content length or lorm.ii oipase can (7031 603 fl""1'
-• sena a teller to Suoe^uno At Work (5502G) 401 M Street SW Washington DC ?r..ifiQ
Success at
powersville
Dump
q? actions at the
been completed.
in
sp<¥£ssful cooperation with
-ih&community to address
the hazardous waste prob-
isite.
Cthe
remaining concerns regard-
ing the site, while simulta-
Qeausly eliminating health
threafeiand preventing
further contamination.
-------
CONFERENCE OF SOUTHERN COUNTIES, ASSOCIATION
P. 0. BOX 2486
PEACHTREB CITY, GEORGIA 30269
AUGUST 1993 - FIRST EDITION
*****************************************************************
*****************************************************************
THIS EDITION WILL BB DEVOTED TO RCRA ACTION ITEM DUB BY AUGUST
27. 1993. EPA published in the Federal Register on Wednesday, July
28, 1993 - Solid Waste Disposal facility Criteria; Delay of the
Effective Date. Your comments are due no later than 30 days; and
to assist you, enclosed in this newsletter are the following items:
1. Federal Register Vol. 58. No. 143 Wednesday July 28, 1993
Proposed Rules. 2. Weston's issue paper on Financial Assurance
Requirements. 3. Included in the Weston's package is Appendix A
Federal Register Part II Wednesday October 9, 1991 FINAL RULE.
4. State status on the Permitting Application packages.
FEDERAL REGISTER JULY 28, 1993
DELAY OF THE EFFECTIVE DATE -
EPA PROPOSED RULE*
IMPORTANT: This rule does not
change the MSWLF criteria but
allows additional time to come
into compliance1
Highlight of items addressed:
1. EPA current data indicate
that nearly all states will
submit an application for
approval process by October 9,
1993. The six month delay will
allow most states to have an
approved permit program by
April 9, 1994. The important
issue here is that it provides
the vast majority of owners and
operators to take advantage of
the flexibility afforded to
states with approved programs,
and the potential cost savings
that the flexibility may
provide.
2. The extension is limited
to landfills accepting 100 tons
per day or less of solid waste.
First to qualify for the
extension, the owner/operator
must assure that the average
daily tonnage received over the
one year period extending Oct
9, 1991 through Oct 9, 1992 is
100 TPD or less.
Secondly, the owner/
operator also must assure that
the daily tonnage received on a
monthly basis during each month
of the six-month extension
period is 100 TPD or less. A
monthly average will be used
for a more flexible approach.
3. The extension is limited
to existing MSWLF units and
lateral expansion of existing
units.
-------
4. The MSWLF is located in a
state that has submitted an
application for permit program
approval by October 9, 1993 or
is located on Indian lands.
5. The MSWLF is not currently
on the National Priorities
list.
6. Issues pertaining to
sewage sludge.
DELAY 07 THE FINANCIAL
ASSURANCE REQUIREMENTS:
Proposed effective date of
Subpart G, Financial Assurance
is April 9, 1995.
MODIFICATIONS TO THE EXEMPTION
FOR VERY SMALL LANDFILLS IN
258.1(F)
This address design (Subpart D)
and ground-water monitoring and
corrective action (Subpart E).
To qualify the exemption must
accept less than 20 TONS PER
DAY. Proposed extension is to
October 9, 1995.
MODIFICATION OF CLOSURE
PROVISIONS FOR FACILITIES
CEASINO RECEIPT OF WASTE BY
THEIR RESPECTIVE EFFECTIVE
DATE:
This part addresses the
requirements for installing a
cover.
COMMENTS SUBMISSIONS!
l. Original and two copies
2. ADDRESS TO:
Docket Clerk, OSW (OS-305)
Docket NO. F-93-XMLP-FFFFF
U S EPA Headquarters
401 M Street, S. W.
Washington, D. C. 20460
3. Detail information on
specific aspects of pro-
posed rule: Allen Geswein
or Andrew Teplitzky
Phone (202) 260-1099
8 W MAMA
FINANCIAL ASSURANCE REQUIRE-
TWO PARTS:
The Weston issue paper prepared
by Ms. Deanna L. Ruffer and
Dr. James E. Kundell.
Appendix A - Final Rule
Wednesday October 9, 1991
indexed by PREAMBLE, RULE AND
APPENDIX. The areas are high-
lighted for your information.
STATUS OF STATE APPLICATIONS!
As of Friday July 30, 1993,
this is where your state
currently stands in the
permitting process:
KENTUCKY - FULL FINAL AUTHORITY
VIRGINIA - PARTIAL FINAL
EXPECTED OCTOBER
GEORGIA, NORTH CAROLINA, SOUTH
CAROLINA, AND TENNESSEE
tentative ruling for Federal
Register publication.
ALABAMA And MISSISSIPPI submit-
ted and under review.
FLORIDA - Submitted a draft
ARKANSAS - Submitted June 30
W VIRGINIA and TEXAS are due
for submission in September.
REMEMBER DUE DATE - AUG 27TH.
The comments on the Proposed
Rule Federal Register is down
and dirty for your information
DO NOT rely totally on it. It
is highlighted for quick
information only.
If I can assist you please call
me.
-------
JUL 29 '93 03:42PM NfiCO 202 3932630
P.3/13
40568 Federal jester / Vol. SB. No. 143 / Wedneiday. July 28. 1993 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40CFRP«t258
Solid Wist* Dlepoaai Faculty Criteria;
Delay o« the ErJectiv* Oat*
AGENCY: Environmental Protection
Agency (EPA).
ACTION; Propoied role.
SUMMARY: On October 9, 1991, EPA
ilunicipal Solid W
(MSWLFs) under Subtitle 0 of tha
Rafource ConMrvation and Recowy
Act (RCRA). EPA is proposing to amend
theta criteria by delaying the effective
date /or six montha for certain smell
l»«Hfiii« and by delaying the effective
data for one year of the financial
mturuiCT requirements for all lemf**^*
The Agency hac received a eonsiderabla
number of requests from SUms.
bxalitiee. and other group* to extend
tha affective data. This proposal Is not
intended to change the MSWLF criteria,
out wonic prcviQ v cwtBn owiwnr
opeiaton with additional line to coma
into compliance with tha MSVVLF
criteria requirements.
This pro
changes to tK?
announoea future
mail I««^BII axemption
related to ground-water aoailaanf
modifies the timing of compliance with
the doaure requirements for owners/
operators mat caaaa raosrpt of waste
^jjrtono the ejrectjvt date. _
DATES: uommenu on bis proposed rule
must be submitted on or before August
27.1993.
al end t
pies of their
oumber ia (703] 920-8810. TDD (703)
48*4323.
POT men detailed information on
•pacific aspects of thia proposed ml*.
contact Allen Ceswein or Andrew •
TepliUky. Office of Solid Wart* (O3-
301), U.S. Environmental Protectioa
Agency. 401M Street. SW.. Washington.
DC 20460. (202) 260-1099.
SUPPLEMENTARY MFOMtATKNC
PneableOuluae
h Authority
HBeckooand
A. Overview of Subtitle D Gunent Emcttve
Datm
B. bapleaeatatioa of the MSWIJCrltartt
C. Sununaty of Features in the Ojtterta-t
Safve IB Facilitate
m. Delay of tae Eftaciive Date
A. Reasons Cited far a Daley of the
KfbcnveDeta
B. Proposal to Extend
tha Effective Oats
IV. Delay of ue Financial Aetunace
Requirements
A. Rerans tea Delay of tbe Financial
AMuranoa Requlremeats
B. Proposal to Delay the Financial
V. Modlficsttons to tbe Exemption far Veqr
Small Landfill* in $ 254.1(0
A* BtckBUiind
B. CteUBM tD that A»*ll I emXHIi
otion Bjgazdiai Ground-Water
Monitoring
C Pnpoaal to Delay tbe H&etlve Dele for
Landfills that Qualify for the Sauil
ogi
comments to: Docket Clerk. OSWJOS-
30S). Docket No. F-93-XMLP-PFFPP.
U.S. Enviromnental Protection Agency
Headquarter*. 401 M Street SW..
Washington. DC 20460. Comments
should include the "docket number F-
93-XML?-?FFFP. The public docket is
located in M2616 at EPA Headquarters
and la available far viewing from 9 a.m.
to 4 p.m.. Monday through Friday.
excluding Federal holidays.
Appointments may be made by calling
(202) 260-9327. Copies cost *0.15/page.
Charges under 525.00 an waived.
ron RMIMEM •ewvuTtoM CONTACT: For
general Information, contact the RCRA/
Superfund Hotline. Office of Solid
Waste. U.S. Environmental Protection
Agency, 401 M Street SW.. Washington.
DC 20460, (800) 424-B346. TDD (800)
553-7872 (hearing Impaired): in tha
Washington. DC metropolitan ana tha
Vt ModifiealiaBOfaonin PnvUtonsar
PadUnei Coating lUoalpt of Wwta by
Thfir RMpeethm Enecave Date
V1L Summary of This Propoaed Rub
VUT. Xaqiuct far Comments
DC Economic and Regulatory Impacts
A. Regulatory loapso Analyiu
B. Reculetorjr nesibUlty An
C Paaeraork ladaciioa Act
t Authority
EPA la proposunj today's ragolatione
under the authority of sections 2002 and
4010(c) of tbe Resource Conservation
and Recovery Act of 1976. as amended.
RCRA section 2002 provides the EPA
Administrator with tbe authority to
promulgate regulations as are necessary
to carry out her ft"r**'""« under the Act
42 U.S.C. 6912. Under section 4010(e) of
RCRA. the EPA Administrator is
required to promulgate revised criteria
for Csdiities that may receive houeehnlit
hazardous wast* (HHW) or small
quantity generator (SQG) waste. The
•criteria shall be those necessary to
protect k"ffnn health and *h*
• environment. At the same tun*. In
promulgating these revised criteria, the
Administrator may take into account the
practicable capabilities of facilities that
may receive HHW or SQC waste. 42
U.S.C. 8949a(c). EPA has interpreted
"practicable capability" to include both
the costs which ftalitias will incur in
complying with the revised criteria and
the technical capability of facilities that
must comply with tbe regulations. 96
PR 9097B. 50983-W (October 9.1991);
S3 PR 33314.3325 (August 30.-1988).
EPA has taken practicable capability of
MSWLF owners/operators into account
in proposing to modify the affective date
of tha revised criteria as set forth in this
Federal Register notice.
D. Background
A. Overview of Subtitle D Current
Effectiv* Data
On October 9.1991. EPA promulgated
a rule under Subtitle D of the Resource
Conservation and Recovery Act and
section 405 of the Clean Water Act
pertaining to the disposal of solid waste
and sewage sludge in municipal solid
waste landfills (56 FR 50978 (October 9.
1991)). These regulations apply to
owners and operators of all municipal
solid waste landfill units that receive
waste on or after October 9,1993.
Landfill owners/operators that stopped
accepting waste before October 9,1991
are not required to comply with the
regulations. Landfill owners and
operators that stop accepting waste .
between October 9.1991 and October 9.
1993 era exempt from all of tha
regulatory requirements except for the
final cover requirement (found in 40
Cnt 258.60(a}). which must be applied
within six months of last receipt of
waste. While owners and operators that
continue to receive waste beyond the
effective date must comply with the
remainder of the landfill regulations
(including location restrictions.
3perstion,d
monitoring a
ign. ground-water
Directive action.
clocure in** post
-------
gg »tl I1»*»PN
P.4/13
Federal aetjatar / Vol 58. No. 143 / Wednesday. July 28. 1993 / Proposed Ruto J056E
MSWLFs in the stale, and must
establish requirements adequate to
ouun owners and operators %nll
comply with the federal landfill criteria.
A state also must be able to ensure
compliance through monitoring and
anforcemeat actions ud must provide)
forpubiic participation.
Toe Agency intends to extend to
Indian-Tribes the urn* opponuiity to
apply for permit program ippnrral as Is
available to states. Providine Tribes
with the oppatunity to apply fat
approval to adopt and Implement
MSWLF pemit programs, while not a
statutory requirement IB RCRA section
4005(c)(l)(B). is continent with £PA's
Indian Policy. The Agency plans to
propose the concept of Tribal permit
program approval whoa a tentative
notice of permit program adequacy i*
published far the first Indian Tribe
seeking program approval.
If EPA approves a state/Tribal
program, a state/Tribe has the
opportunity for men flexibility and
discretion in implementing the criteria
according to local condition* and needs.
Owners end opmtois located in a state/
Tribe with an approved program may
benefit from tbi* potential flexibility,' •
which extends U> many parts of tha
MSWLF regulations. Far •«*«"p1*.-
owners and operators in unapproved
itatn/Tribes must dv^ff1* their, landfill
*ith a composite liner in «""»t«i••»"'"•.
with 40 CPU 258.40fb). whereas
ipproved states/Tribes may allow an
iwner/aperetor to use an alternative
Jeaign based on the performance
•tendard described in 40 CFR 2S8.40U).
3ecaus0 of the tremendous flexibility
provided In an approved permit
irogram. and bnonise it is mandated by
action 40Q5(c)(l)(B) of RCRA. EPA
ully expects that most states will apply.
or and receive roil approval of their
4SWLF permit programs, thereby
naiataining the lead role in-
mplomenting •*"* enforcing the
4SWLF Criteria promulgated under 40
3H part 258. States are currently in
•anous stages of the program approve!
irocese. Several states have received
•partial" program approval, whereby
inly some portions of the state prognuf
-.ava been approved while the
wmainder-of the program is (waiting
•pproval ponding compietion of
tatutory and/or regulatory changes by
tie state. In situations whore estate
rogram is not approved, or where
•ortioni of a program an not approved
n the case nf a partial approval), the
4SWL7 criteria are implemented by the
wner and operator, with no Federal
•nmtting program or interaction. In
tuati ana where the Criteria are tell-
apJemendng. eech owner/operator
must document compliance and
nuintain this documentation in his/her
operating record.
C Summary of Feature* in tfie Criteria
That Sent to Facilitate CoaiaUanet
When the MSWLF Criteria wen
developed, the Agency realized met
owners and operators of MSWLFe
would need dine to come in to
compliance with the regulations J"^
that some flexibility in the regulations
would be necessary because one
standard set of regulations would not
necessarily accommodate the variety of
conditions that •nri*> at »mt« Umiiiif
location across the country. Taking into
account the practicable capability of
MSWLF ownen/aperctors. the MSWLF
Criteria contain a number of features .
that serve to hrftj««^ compliance.
1. Phased ^Pr*1l*T Patee
Pint the current effective date of the
Chttria Is two yean after the date of .
promulgation in order to provide
> fag
sufficient capital and resources tn either
upgrade <*">ir fcHH«<<« of close^nd find
an aliamative waste management
option. The Agency also recognind that
a delayed aflective date would provide
time to review the adequacy of a state/
Tribal permit program. The two-year
window also accommodates owners and
operators of MSWLFs. that wish to doee
their landfill* to avoid having to comply
with all of the Qitaria. These
individuals may accept waste up Jintil
the effective date and then take another
six months to complete closure, thereby
maximizing the time available to secure
an alternative method of waste-
management and procun funding and
professional services to does the
landfill
In addition to a two-year effective
date window, the Criteria also provide
phased effective dates far certain
prorisioasof thank. First, ground.
water moaitorinf requirements far
•zisting units end lateral expansions of-
riatuiintf untttf
ar»phesed-in oetween
October 9, 1994 and October 9. 1996,
according to a schedule set by aa .
approved sal* or. in a unapproved
state, depending on the proximity of the-
MSWLF unit to* drinking water intisa.
As discusesdin the October a, 1991 <•
preamble to the Final Rule, this . '
additional time was provided to.
fa»thn l^V "f
drillina firms and hydrogMiogist»tha|
would luve been oecessary to bring. -
everyone into compuance at the same
time. 50 FR 50978. 51082-51003 (OcL 9.
1991).
Second, the efiecdre date of the
financial assurance requirements U
April 9.1994. or 30 months following
the publication of the Final Rule: Ae
discuseed in the preamble to the Final
Rule, this additional time wee provided
to accommodate promulgation of a
financial test far local governments and
corpontians. CD allow the financial
^Timniii for fln«*v««| uutroments, ad
to provide time for local government*
and corpontiona to plan for and obtain
any needed financial assurance. 56 FR
51104 (OcL 9.1991L
EPA also included provisions in tho
rule that (a some wey phase in certain
requirements. For example, should sa
existing unit not be able to comply with
the location restrictions fat airport
Csty. floodplalns. or unstable
owners/operators would have until at
least 1996. and potentially later if the
landfill Is located in an approved slat*,
to dost. ID addiflaa. the landfill Criteria
do not require a liner far existing
portions of MSWLF units; the owner or •
operator need not install • liner until
the unit-is expended laterally.
Thus, for existing MSWLF unit*, this
generally means that *h^ only
reouirementa that inunediateJv take
eftect on October 0.1993 an toe-
operating criteria, which include "good
housekeeping" requirements such as
Idol.
procedures to exclude the receipt of
regulated hazardous wastes ana,
polychlarineted hiphenyls (PCBsL
Section 258.1(0 of the MSWLF
•Criteria includes en exemption from the
design, ground- waterman
•nii
corrective action requirements for some
very email, remote MSWLFs, so long es
these landfill* show no evidence of
ground-water rrmfamiaetJnn. The-
Agency's Regulatory Impact Analysis
found that thesr three regulatory
requaramenUaetbaaxtfhestelamentaaf
the regulations. ID adopting thisi
maintained that it had
complied with the statutory standard to
protect human health *™^ the
environment, taring into eccomt the
practicable capabilities) iff imiH f*«"*nn
owoeie and operators. However, on May
7. 1993. the United Statae Court of
Appeals 6or the DifTriTJ of <^/i*">"^"
Crcait Court issued aa opinion
to a Sierra. Quo and Natural
Detaae Counsel (NRDQ
challenga to thai MSWI,F Criteria (Sierra
Club v. United Suites Enriruuuntal
Protection Afeaey. Na 92-1003 OXC
Or. May 7. 1993). which vacated the
ground-water monitorine» Thus, all
MSWUa, regardless of six*, an now
required taperibra ground-water
-------
JUL Zb '93 03:45PM WOO 202 3932630
P. 5/13
40570
ftdanl
/ VoL 58. No. 143- / Wednesday. July 28. 19M / PtopOMd RnlM
monitoring. SawJl landfills that meat
the critana sat faith Ja 40 CFK
2S8.l{fXl) will costume to ba eligible
for the •XBOptioa from the design
requirements. •
3. Additional FkribOity Available to
Ownen/Opanton in State* With EPA-
Approved Permit Programs
Aaina&tksaed aarbar. stataa/Tribea
with £RA>«apnved permit programs
flexibility with rwpect to the way m
which Uwy unalamaatlbo MSWLF
critana. potentially nsuhing in
considerable coat aiviagi to the owner
and operator. In addition to the example
of flexibility (ffmiieeri earlier with
respect to aa altareadw liner design, aa
approved state/Tribe may uaa
alternative spproacbaato tba bdanl
requirement* that would apply la
uaappraved states/Tribes, while still
protecting hunna health ud tba
anviroDnent. Bzuapiae inchidsfi
allowing siting in certaia locations
when ownere/openun ta unapproved
rUtw/Thbee could not; allowing aa
alternative- cover material, other than six
inches of eoiL to be appUad at the ad
of each operating day: altering ground*
water monitoring frequencies and cieea-
up standards; «Uowiag far oltataativ*
landfiu cover ffisignst soortaaiBg CM
post-dumv can period: and pennttiBg
QL OaUjr of lha EBbcthv Hate
A Jtoosom Gludfor a Delay of tha
Effective Dot*
QacpitatfaaanabBfliaatufaaofth*
Criteria that aarva to *»-n|>-*»
compliaaaa with d» SvhttU»O
ragulatioaa, tba Agency haa cacahvd «
/opanto easall <
g/th. aartaaal
have coma 1
government
MSWLPs,aad«J
organizations who npraaeat local
government internal Than raqueatar*
died a number of nasam far • delay of
fUBUBBiizsd bakjw.
i. Inability To Comply With
F«danl Programs
TboAgaocyhaii
!ett«n i
gafwjaaenta an i
•Uampt to caoaaiy with aa
of
i
hi their
MSWLF oit
must daal wtth t rariaty of asBpoaaca
costs of raca eannDowatal i
tha uodfl
tha ufediinUng water ptapeak and th* locd govenaientehara experienced
" '
wastewaiar trmttnant program, ill of
local government funds. Local
govemmenta have raquaatad a delay in
tha affective data of tha MSWLF Criteria
to give them additional Una to put the
financing ia place to either upgrade
their existing tandfflKa) or dose their
landfillU) and pracun en alternative
form of wast* management
2. Unavailability of Flaxibiliiy in
Unapproved States
Beceuae moat suteaan in tha piocni
of having *hiHr permit i
*< t —* . (
approved I
haw expressed uncertainty i
the regulatory requirements they will be
niblactto on tha effective date of the
criteria. Thia cmataa a potentially
confusing tituition when, oa October 9.
1093, ownen/oparston in unapproved
statee would be eubfeet to "ovwiapping"
federal and atatvreojuinmeBts. ui
addition, whan a tut* ia not approved
be/on tha effective data, owners and
operators in that stale would not be
afforded the flexibility that euuld be
available in approved statee to allow for
consideration of local conditions aad
needs when designing aad opaniiag •
landfill For <
i/opamtc
In AB noappiuved •Utvaraiaquind to
plan ate iodiaa at aaitbaa matariai on
top of that waata at tha and of aach
opmting day (knowo as "daily oomc^h
whanaa an appvavadatata would hawa-
lh« 8«nbllltT to allow owoara/opamlofa
to uaa-an altanwti«ar "daily" conrar.
ld
ii
dally covet
space eadnsatt mi
saving! to the owner/operator.
3. Delays in Gaining Accass to • New
Waite Management Facility .
Local govenuaaati that pin to dan
their own iaadfille **"! V»™ a naioaei
facility an •«p^t«i«.j^j delays in
gaining eccen to the naw facility due to
di£BcuitM»ia: Securing aaendei •
Xfiiring pennita aad other
BBd/or
to SPA Jadicate tbatlhlc^aaBeddrf
true far oammunitiaa wUh, smallar
landfilla (a«. accepting. laaathaa tot
TPO) that an men likely to«'
facility. In «oo
procesa hv uaabU to haadai the influx of
aad (ar modlScailona **' ni^i» t^^^iKn
pennita, thereby delaying n owaer'W.
operator1! ability to meet the critana OB
tha eftailve date. In addition, ay
continued oppoaitioa to the siting of
naw regional oKalitiea by local
oppoBlion groups, who have initiated
litigation to challenge stung dedaiena.
Bond ianae, tax iacnaaae. and tipping
fee chaigae needed to finance the
closure or construction of MSWLFa
have had to go through the legal
procsuae required far approval of such
actions. Some local governments have
hid to teak naw statutory authorisation
from their state* to allow tha local
governments to farm regions! disnicu
or to finance fadlittna. Hacauaa many
stata laguUruna maet only for a few
months each year. thU huk is just now
galling compJ0tad in WM places, Thee*
local govetomanta an nquastina » delay
in tha effective data eo that uattl the
new landfill i* complete, they can kaap
their local laadfilKa) opaa without bang
subject to tha new regulatory
roquireoi«nts (eepedalty costly ground-
water monitoring, poet-doiurt can. and
corrective action nquinments).
3. Proposal To Extend th« Effecovt Data
laraapoosa to Uwsa concama. the
Agency today jnopoeai a coo-time
extension of the •uactiwe data of tha
MSWLF criteria for » period of six
month*—6om October ft. 1983 to April-
9,1094 farownaa and opanlon of
nlatlvely aawii MSWLF units (existing
and lateral arpmrional if cartaia
conditions enwaat. EPA is not
proposing any changes in the
•uhttaatrM nuuuaaaats of th» crUaria.
To qualify for the «mnainn, tha)
fbllowiag prapoaad candidoaa would
nead to be mat (UThe landfillracalvea
100 tons par day (TFD) or lees o/any
rnmhfaiation of houaahold. frrnimeirial.
OT10wUlCDul arllilll VUtal CD wA IDAVfli
ivaBnabuia;(2) (hvlaadSU l«kxatad
in 4 stato that haa\ aMbiaittffd as
appu'catioa far promaBt approval to EPA
by October 9.1993 or U locatad OB
Tribal land*; and (3) tt» landfill is not
cumatiy oa tba< SuparfundNatiacial
PrioritlaaUattNPU A further
diicuraea of iadividuai aspacU of thia
prapoaad axtanaioa follows. It should ba
noted that t sUta/Trtoe. ngardlaas of Us
i more atringeot afledrn dates
/or non stzingant cnterw for
qualifying tar aa eoaension.
1. BasU far Six-Month Tiroaframo
As diacuaaedeariiax. ewaen and
iihat
tha£adeitlcnnriamaybaeoactiT»
bafan thair napactiv* stttaa obtain IPA
approval of thaa perout prognma.
thsrabysubiacltBgwchlocalitlastoa
changing wt of Kdanl-theB-«tato
regulaooaa orar a short period of time
-------
JUL 29 '93 03= 46PM NflCO 202 3932630
P.S/13
Federal legists* / VoL SB. No. US /Wednesday. July 28.1M3 / Propowd Rule* 40571
md Initially H«t*t»ig the Stability
jvniUble to, and potentially increasing
design and operating costs tot, owners
md operators ia states with EPA'
ippreved penait program*. EPA'i
numt data indicate that nearly til
tuias will submit an application (a
ipproval by October 9. 1083. The
\gsncy has found that the approval
jreoasa far asttfe'sappUcattantskst
ipproximataly six months. A dx-monta
iaUy of the effective data would DMB
hit roost italae will have in approved
xnait program by April A, 1904.
"hanmre. oy delaying the affective date
or ux months— until April 9. 1094 the
•act majority of owaan ud opanton
*ill be abb to take advantage of tha
'.oxibUity afforded to states with
P proved programs and to cake
d vantage of the **
is the impact of the
rial tha flexibility may provide. In
ddltlon. because many state programs
re expected to-be approved in Iho
«riod between October 9. Ififla and
vpnl 9, 1604; —*-^"g tha effective
iita ox months will allow many local
o vem&Mata la avoid the situation of
earing up to meat federal atandards and
ion. a few moatha later, changing to
~.eet nawJy appnvad state standards.
EPA hu received comments from a
umber of communities ^^t atata tf*tt It
as been impracticable far them to
Main a paimit for a naw Duality within
IB currant two year effective date time
ama or to raacn agreements with other
immunities to **j^'fh a regional
nrffiil Tha additional aix montha
i eluded in thU proposal would provide
jramunittot that hay* alnady Initiated
lampts to utiliaa allanutiv* diapoul
cilidn with timato obtain aithar tha
anntta fior a nnr facility or to ntch
TMaanta with othar oonununitiac> In
iditioa. tha tfat month delay will
sura that oommnnxtiw that hava
ready wuxht altoaativo disposal
ulitiaa. or hava initiated etfaita to
odify their nKoag MSWLP to comply
itb the tula, will han tha additional
•aa to obtain adoquata financing to
-ppon such tfinta. Thus, th* proposed
t-nonth •'^•'ulirg fat tha effective
via tftkea into account ***+ pncticablB
tMbilittas af "«^i» cloae to 100 TPD
may wish (o retain evidence that they
• are eUglhle far the extended effective
data.
To determine the avenge tons
received per day over the one year
period, the owner/operator could
simply divide tha *^?fsl annual y**"f"*rt
of waste received by 365 days. The
Agency realizes that many small
landfills do not have scales or othar
mains to weigh the trash hauling
vehicles as they enter the landfill If no
scales an available, owners/operators
may use other means to assure they
meet tha ton per day limit. For example.
the owner/operator could f**4\"$ a
one-time moasunme&t of typical lull
trash hsuting vehidas. This could then
be used to determine avenge tons per
day. Other options include estimating
weight tttun volume of trash hauling
vehicles by using a conversion factor
(e.g.. one ton equal to three cubic yards).
or using sales/accept
trash haulers.
The Agency solicits commanU on
whether these two calculations are
necessary in order to avoid extending
the effective date for historically larger
facilities. The Agency also seeks
comment on the methods of calculating
the loos per day.
While the MSWLF criteria apply only
to ludfills thtt accept household watte.
tha Agency is swan that many of these
landfills elm snoot oommenaal and
non*hesBTdous tntittftrrsl aolid waste.
•comaMidai, and industrial solid'
may be found in 40 (7R 258.2. Data
contained In tha SPA Report
"CbencterizaUon of Municipal Solid
Waste In the United States: 1M2
Update," indicate that 55 to 65 percent
of municipal solid waste comes from
redde&tlal euuitae and 35 to 45 percent
comes from conunerdsl sources. Other
data compiled by the Agency suggest
«M. while the vast amount of
gon&azirdoui industrial wejte is
generated by manuartiiiers and is
-------
JUL 28 '93 03:47PM NflCO 202 3932S30
40372 Federal Ragbag /Jfol. 58, No. 143 / Wednwday, July 28. 19W / Proposed Rules
managed oolite. « null percentage of
industrial waste is sent to MSWLF*.
When deliberating ovw the
qiitltfirstinna for tho proposed
extension In today'* rule. the Agency
considered prohibiting MSWLP* that
quality far tot extension from accep
-az industrial waste. For
pting
several masons, however, the Agency
dacidod *ffH"Tt a prohibition of
accepting industrial waste. Specifically.
(1J Till wasts stream typically
represent* a small fraction of the entire
watte sent to a MSWLP, (2) prohibition
of certain waste streams would be
difficult to enforce. (3) for some
Industrie*, the local MSWLP represents
the only economical method of disposal
of thdr waste, and (4) the extension
would be grantad for only a than period
of time. Therefore, today's proposed
•mtMtsinf applies to MSwLPa accepting
100 ton* per day or leu of my typo of
solid waste, which may include)
lUBUMboIaal WUtsf*
coming into faij compliance with tho
criteria. Today's proposed extension i*
not intended to pravidt relief for
ownars/apantnn who wise to apea
new units. The Agency is allowing
ownere and operator* of MSWLP iintta
receiving baa than 100 TTO tad that
meet tho othar ottaria discussed herein.
to laterally trnmni tti«y units during
this daisy period so uootta disrupt the
tronch snoeiM fiQ practice* tf*at occur1
at many of the **" i
U.S. For example. In a tnach fill
operation, a small tnach ia excavated,
filled, and covered in a nlatlveiy *hoft
period of time. As the old trench ia
additional waste. This extension ia by
definition a lateral expansion. Umioa
wuta. tad industrial aolid wwU u
dafisedin40CPR258i
Fiiully. todoy'i ptopood oxuosi
thsruora Unit the. ^"*Tf"t«™ to
conddanbly fewer landfills than
intended.
4. The MSWLP Ia Located in a SUte
That Hu Submitted tn Application for
Permit Praam AppTOVii by October 9,
1M3 or Is ' *"**rH '
ta udndoa far »
majority of the ItadfiU* in iha country,
wUlhavob'UUftfhctoathinuiahtyof
wist* dinoMd ia ludEUi. OwitU,
-Aa pnwiously Beafiened, among the
reasons to today's proposed extension
ic the need to provide mom time for
states/Tribee to obtain E?\ approval of
ncaivtng 100 TPD or leu would oxtond
tht cibcn'Tt d«* for appnudauMly 79
pacBot of the MSWLFt in UM country,
out would tppiy to leu then 15 pvromt
of the total woita ttnam.
3. Ine pi*tfnif'yn I>
MSWLF UnlU and Latoml Expansion*
of Existing Units
The Agency, in $ 2S&Z, dafine* tn
existing MSWLF unit u «ay unit thai ia
reaivlng mild waste ai of UM afSictin
d&to of the landfill eritaria (punativ wt
at Octdhv 0. 1093). The Agancy haa
iniarpratad toil to mnim that an •"'•^Tfl
unit U dafined by the anal oteat of
waste (aonwttttua ntend to aa tba>
waste "footpnnl") placed aa of Octooar
^ 1991. A lataral axpanciea is dadoed
houndaziaa of an eclating unit. A
MSWLP unit ia any unit that nea not
racaived wa«t« prior to the affactfw dan
lOaotxa «, 1983). Today** proposed
axtaniion of tho affocdv* dint far
landfills accepting lua th«a 100 TPD
done net apply to new units. If • unit
haa oot raoaimd wmcte by Oaober 8,
1993, U Is s new unit sad must comply
with the Part 256 nquixvmanu on
October 9. IMS. The major ntlooak Jbr
today's propoaad United extanaioa ia to
of the owners and opentots will be able
to take«dmntage of state/Tribal-
flexibility upon the new effective date
and so that localities can avoid the re-
tooling that would bo aaceaaary to meet
federal standard* in October and than
different stale standard* Mvenl months
later. The Agncy** curram data indicate
UutneariyaUstataeareliktlytohave
reotivad final approval by-April 9.IBM.
In ordarto asann) ***** *M« occurs, frri
ta provide ruTthar incentives to the
state*, thr Agency decided to Ufflit
today's pnposed extension to owner* .
and operators of MSWLP unioincetvtng
lOOTPO or tost to state* that have ••
sobmitted an application for permit'
pTognmtppravaLTheAgaocyis
linking ^iaf'j preoowMJ 33x2.12^* ,3
the slate permit program appravai
procBu sou not to slow the pace of
state prognsr epproval Conveneiy, this
liakags-mav-mdead serve u Impetoa for
States to suhmii th«tr •nnllmtinRM
appll
tooner rather than later.
The Agency recognizes that, for an
owner/opentof ta take advantage: of thi»
•r'tiutcn. that ownaa/epeTator must
know whether their state haa •**
locfUUet to nmain open walla they
cosnplsta their plans far altanaQW
watta manaeenunt methods or for
an appucsticfl fix permit proown
approval oa or befiara Octobar ». 1993.
Thereaae, wheat th» Agency publishes
the final rule for this extension, it will
include « Uat of statea who hare
submitted an ippUeatun bv the dab? on
will subsequently acknowledge receipt
of application for those Stale* who
siibnit their applications ifttr thit ^"'t
but oa or beiere October 9,1993.
Ownen/openton with MSWLP unite
located In statee that do not appear on
tMf ||ft 10 thy final rule Thf"H *^*^ttft
their state to find out whether EPA haa
notified tho stats that It ha* officially
fluhmittad an application by October 9.
1993.
While state* are required by BCXA
Section 400S(c)(l)(B) to develop a •
pennit program for MSWLFs. the ststut*
oom not requin Indian Tribes to do the
same. Aa mentioned previously In this
preamble, tho Agency plans to propose
to extend this opportunity to Indian
Trtbea at the time UM Agency publishes
its first tentative decision to approve an
Indian Tribe's permit program. Because
many of the landfills on Indian lands
could qualify far today's proposed six-
month exiensioa by virtue 01 thsjfsct
that th«y accept less than 100 TPD and
are not on the National Prioritiea List.
MSWLP nnita on Indian lands to take
sd vantage of the six-month extension.
even if toe Indian Tribe has not
nibmUfod ao application fot pennit
program approval by October 9. 1993.
For the purpose of today's proposal,
•n I'r'ti*** Trfoe la «i^f"nnf as any ^nf*'in
tribe, band, m**""! or community
recognized by the Secretary of the
Interior and exercising ntft«*-itiil
governmental dudes and powart within
Indian country. Indian lands means: (a)
All land within the limits of any Indian
United States Government.
notwithstanding ^h* fCTHa**rr of any
patent, and Including rights-of-wiy
running throaghout the resemtiAn. (b)
all dependent Indian fnmmunltlns
within the harden of the United Stats*,
whether original or subsequently
acquired territory thereof, and whether
within or without the limits of a state.
uid U) ill ladlta ailoocents. it Indian
tides to which hav« not been .
including rights oCway
finMntt ttt T*Af* in
today's proposal doe»not explicitly
[ndude Alaska Native Village*. S»A
belicvea that, to the extent these entities
exercise gyfotyH^l trTTHi"**"*"* duties.
and powers, they would be eligible to
nvaLFor
sswrm
which the final rule waa signed. EPA
allowing that landfill* on Nativ* Village
Lands be eligible far the six-month-
extension whether or not the Villa** ha*
submitted an application far perm*
program approval.
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JUL 28 '93 e3!49PM NOCO 202 3932630
P.8/13
Federal Eegatar / VoL 58. No. 143 / Wedmnday. July 28. 1993 / Proposed Rulai 40573
S. The MSWLF it not Currently on the-
National Priorities Lift
Prior to publishing tha proposed rule
for the MSWLF criteria in 1088 (see S3
FR 33313), the Agency examined the
chancterisu'ct of landfills in tha
Superfond data base. Of Iba 27.000 sites
in the Superrund data hue in 1988,
almost DOB fbuxth wan MSWLFs. la
addition, u of May 1988,22 parent of
tha lites on tha Suparfund National
Priohties List (NFL} wen identified u
MSWLPc. u of May, 1988. Because the
Agency doe* not wish to perpetuate any
problems assodaiad with MSWLFs
currently OB the NPL, today*! prepeaed
extension does act apply u landfills
currently on the NPL u published IB
appendix B to 40 CFR part 300.
6. Issuea Pertaining to Sewage Sludge •
AJ discusud in the preamble to the
October 9.1991 final rule, the MSWLP
cnterlt In 40 CPU pelt 258 fulfill a
portion of the dean Water Ace (CWA)
section 40S[d) mandate thai EPA
promulgate regulations governing the
use and dispocal of sewage sludge. For
this reason, tha part ZS8 criteria were
jointly promulgated under CWA and.
ROIA authorities and apply to all
MSWLF* in wJiich sewage sludge is co-
disposed with household wastse.
Section 307(b)(l] of the CWA provide
that publicly owned tieatmaet worka
(POTWs) may relieve industrial
uixhargen uuui pretreettnent
requirements lot a pollnunc (La;, grant
a "removal credit") under certain
conditions, to avoid duplicative
wastewatar treatment by the POTW and
industriil pratreatar.
40 C7R 403.7(a)(3) of EPA'araoovel
credits regulation* pmvldea that a.
POTW mey be authorized to grant
removal credita only if "the ft**1***"!! of
removal credits will not causa thai
POTW to violate the local, state, and-
Federal sludge requirements which-
apply to the aludge manefament Betted
choaan by '.he POTW." Whan the
management method la. co-disposal in a
MSWLF. the applicable regulations are
spelled out la 40 CFR pan 258. Ae
staled in *h* areeinbia to ***^ final rule
for the MSWLP criteria. "SAhae t
determined that POTWa should not be
authorized to snot remove! cndUi until
the USWLF ta waiccv the POTW Mode
its sludge ie in compliance) with all the •
part 258 requiresueu* • • *"In>
additiaototheoperatfegieqinreauats.
these would include locaiua standards,.
rfftaWEffa fln041od*WVla9r 0flaflilCKe!tffl» atlld
Dnptta say extension* to tha eSsctiva
date that nuty be pramulgatad, SPA will
not grant removal credit authority to a. •
POTWunlaeeiteandeitasludgaloa of a financial teat to raalixe a aignifii
MSWLF that complies with the full J l~ml ' " "
panoply of tha nut 298 rule
requirements. Therefore. POTWs will
not be eligible to receive removal credits.
if they send their sludge to small
Landfills that rhoosa to take advantage
of tha rix'inoath extension.
IV. Delay of the Financial Atturuca
Requirement*
A, Reason fora Delay of tlw FMoodaJ
Auutanct Retjulrement*
In the final MSWLP criteria rule, th*
Agency pramulgatad an affective data of
October 9,1993 for moat of tha
provisions of the rulaiJiowavar. bacauaa
the Agency was not prepared at that
time to promulgate a financial last far
lOGaU ffOWXBflAttfitB 4a\fiu *Qa? COKOOftUQOaL
the Agency delayed the affective date ol
the financial responsibility proviaiooa
until April 9,1994. In doing so. tha
Agency Intended to provide adequate
time to promulgate a Enaadal'test for
local Ravenmsnix and another for
corporations before tha effective data of
the financial assurance provisions. Tha
financial test would allow ownera and
operators to demonstrate that they can
satisfy tha goals of financial tov**'""*
OB their own, and that they do not need
to procure a third-party Instrument to-
assure thaftha obligations •••/»-«-i~<
with »*itlr ^"Hfill will be nM 'Vimf
an owner or operator using a p"*~^a>
test would not have to secure a UnroV
party Instrument, the coat of financial
assurance to the regulated community
would decrease.
The delayed effective data aleawaa-
Intendad to provide ownan and
operators sufldant note to detananw
Whether they satisfy tha applicable. -
financial test criteria, fox all of th»
obllgatlooj -t~"VTJ with their
fadSnae. and obtain a guarantor or an .
alteauu Inatnimaat. If nacasaary. The
Agency also laoogabad that local
guoanuuania. in wttcuUi. raaoir*
notice of the nquimnMot* >3 ordar to
plan their bndgat* for th* upcoming
year. However, th* Agency encountand
unutldpatad delays ia the
procasa during tha davalopcaaot of I.
toe local govemneat and euipuiaie •
finandal tests. Ae a result, neither
financial teat wiU be prootilBanid •
vrithin tha ttmeframa antidpatsd when
the Agency eataUtafaedtba-Afell.* IBM
affactivadaoiftjrthafinaaciai- .
respjanstbttity ptovMoc
decrease in tha cost of compliance with
the financial responsibility
requirements, wbila assuring that the
costs associated with MSWLFs will be
met. ft also will provide dme for the
remaining owners and operator* to
budget for and acquire the appropriate
prcftir-i^i assurance mechanism.
. The Agency britovae theitt la.-
Importut to-hava-thma financial
in place baton* the- financial •
nspoasihiliryprovialowbacoma
eSactive. This wiU allow owaanana
operators thataatiafv tha raquiramanbi
prcftir-i^i assurance m
S. Propotal To Delay tht financial
AuurancffoquimnwU
Today's proposal Includes a delay of
tha effective data of the financial
assurance requirements to respond to
the delay in promulgating final financial
test rules. Today's rulemaklng propoeee
to establish the effective date of subpart
C, Financial Aseurance, to be April 9.
1995. The Agency believe* that this
additional lima will be adequate to
complete the promulgation of the
financial test rule and provide notice to
affected partiee. Thi> one-year extension
would be limited to tha financial
responsibility provision published In
subpart G of the final MSWLF criteria
published on October 9, 1991. This one-
year extension is not limited tn small
landfills. It la available to owners and
operator* of all MSWLFs required to
comply with the financial responsibility
requirements whether or not It Is
located In a note having submitted an
application for permit program
approval.
V. Modifies tione to the Exemption tar
Very Soull LaodfiDe ia f 2&*.1(Q
A. Background
The October 9, 1091 Final Rule Car tha
MSWLF Criteria included an i
for owner* and operators of c
email MSWLP units (existing, new, or
lateral expansion) from the design
(Subpart 0) and gnuao>walw
monitoring and coaectlve ai ilnfl
(Subpart E) requirements of the Ctitaria.
Sea 40 CFR 2M.KQ. To quanfy far ma
t'ffliptlffP. tha "till la*BI1 otA ta
accept less than 20 tons
avaraga annual baste, so
evideJDcaofgroaBd-waiar
(jjA
ltythatajcpart
annual intarrupdon of at least these
transporutioB that prevents
(o a
regional
UiJA!
Jlty.or
DAconununrrftbatnaa no
alternative end the landfill UB* is
located ia en ere*, that annually reostvas
lacs than or equal to 23 inchas-of .
pracipiunsB.
In adopting this *'"**** aiauption.
tha Agency maintained that It had
complied with tha statutory standard to
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JUL 28 '93 03:50PM NfiCO 202 3932630
40574 Federal Segistg / VoL SB. No. 143 / Wednesday. July 28. 1903 / Proposed Rote*
P.9/13
environment taking into Mount tht
-racticable capabilities of "T
wnen and operators See discussion in
s PR sow.
In January 1992. tht Slam Club and
'He Natural Resources n«fciTt Council
4RDC] filed petitions with the ILS.
oust o( Appeal*, District of Columbia
iJicult. for review of tht Sufatitla D
criteria. The Sinn dub and NRDC mil
lleged. among other things, that EPA
*td UlagalLv when it exempted theee
jjill i«M«ifiif« faun tht gtound-weter
993. theUiu'ttd State* Court of
.ppeale for the District of Columbia
Jrcuil iuvwd an opiaion pertaining to
the Siertm Chtb «id NRDC challenge to
* xmption. Sitao
'lub v. (/nfCed States Oivirenmeiita/
refection Agency, No. U-1003 (D.C.
7. 1983).
*
110(cJ. tht only fitter EPA could
insider in itttif*l*T>**'ft whether
ftdlltia* must monitor their ground
«-mt«r was whether such monitoring wu
Mcessary to detect contamination."
it whether such monitoring is
anoicseleV' Tht Court noted that
while &7 A could consider th*
itHfahlt capabUiliee
itaminingttoKBaBl or kind of
atomd-weter moautoring that a landfill
owner/operator muit conduct. S"A
iuld not Justify the coaplata
The Court's opinion only vacated that
part of thg exemption pertaining to
ground-water monitoring end does not
explidtly mention oomctive action.
However, the ground-water monitoring
and corrective action requirements an
highly intsx-nlaltd pans of tht
regulatory program. (EPA promukatftd
in good faith under the **"** fTi**T'n'g
nguletory wquipemeoU in making
opeimtional and financial dedaiona
during the period that the exeaption
theee
E
of pert 250.) Under the current
regulation, iheee mull avdlitlae are not
exempt boat wtctiVT acti
tht entire small landfill exemption.
under $ 258.1(1) is tliaiaettd if an
owner/operator of a MSWLP unit has
knowledge of ground.wetar
contamination resulting from tht unit.-
Tberefara. hi this drcumitsnct, the
existing regulations already subject
owntrs/opentors to all of the provisions
In subpait E, Induding corrective
jfftjim Today'i modification to
$ U8.1U) reflects tht current regulatory
requirements by exempting owners/
operators only from the design.
requirements under subpait Oof part
258. It also Is important to note that
state/Tribal programs may be more
stringent and may not allow such an
—onitoring nqiurHunta. Thus, the
Court vacatad tht F""H landfill
amptioa u it potaln* to ground-wmtw
onltoilng, dlnoing th» Agency to
• • !•«§• iu xule to nouirepouad-
watn monitoring at all landfilb."
Changes to the Small Landfill
•emotfon Jtogoidiiig Grwna-Woter
monitoring
A* • mult of tha May 7. 1983 U.S.
vrt of Appeals dvdaloa requiring
nmd-waur mooitortng at all laadfills
uiat taoaiw hounhold hazardou* wmct*
or mull quantity gnanlor vrui*. ih«
ency, i* sart ai '.o
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JUL 28 '93 03:51PM NflCO 202 3932S30
P.10/13
Federal Register I Vol 58. No. 143 / Wednesday. July 28. 1993 / Proposed Rolas 40578
because EPA considers Uut compliance
with all of the tula's requirements may
b« beyond the practicabli capability of
MSWLFs that meet tha exemption
cniena in tha short term, tha Agency, as
part of today's proposed rule. prapoM*
to extend the effective data for all
requirements of the MSWLP criUria for
a penod of two yean for all MSWLP
unit* that qualify for the small landfill
exemption under § 23B.l(f). The Agency
soliciu comment on today's proposal to
extend the effective date of all of the
criteria, rather than juat the ground-
water monitoring requirements, for this
Mlact gnup of vary email l«n«iBil«-
Today's proposed two-year extension
for thate vary small landfills would
mean that the effective date for the
location restniiions. operating
requirements, and financial assurance
would be October 9.1995. The effective
date for tha (round-water monitoring
and corrective action requirements
would be adjusted to correspond, to
some degree, with tha current phase-in
for all other MSWLF unit as described •
in $ 2S8.50(c). Therefore. EPA proposes
that very small M1WLF .units which
meet the exemption crUarte in
§ 2SS.lif}(iJ and are loeatad law than
:wo mile* froe a drinking water intake
must be ic compliance with tha ground-
water monitoring retirements by
October 9,1999 and those very snail
MSWLF units loeatad greater than two
miles from a ^nn^"ff water intake T***
be in cocpiiance by October 9.1996.'
(Edstinfl ucitx and latfini expansions
that do not meat tha very snail landfill
exemption criteria under § 258.1(f) and
are located lass than one mile from •
drinking witar Intake must ctill comply
with tha ground-water monitoring
requirements by October 9.1994. Sea 40
CFR2S8.SO(c)(l).)
Today's proposal to extend tha
effective date tor two yean far all
requirements of Part 25B would be
available to any MSWLP unit that meets
tha qualifications for tha «""H lament]
exemption in § 258.1(1). The Agency
TABLE L—SUMMARY OFF
wishes to stress that owners/operators of
these MSWLF units, must, in addition
to meeting the tonnage requirements of
less than 20 TPD and the requirement
that then be no evidence of ground-
water contamination, be able to
document either of the fallowing sett of
conditions in order to qualify tot Th+
two-year extension: (1) An interruption
in sur&ce transportation far three
consecutive months ^it would prevent
access to a regional frailty, or (2) no
practicable waste management
alternative exists and the MSWLF unit
is located in an area that receives less
than or equal to 25 Inches of
precipitation.
It should be noted that ***** extension
for vary small **ndfl11s **"** qualify far
the exemption under S 238.1(0 Is
independent of today's proposed six-
month extension for MSWLF units
accepting lees than 100 TPD.
qualifying for the exemption under
S 298.1(f] need not meet all tha
qtmlifirntioDj proposed far the six-
month extension for MSWLF units
accepting less then 100 TPD.
VL Modification of Closure Proviaiona
for Facilities Ceasing Racupt of Waste
by Their Beepective Effective Dele
The Final Rule for the MSWLF
criteria requires owners and operators of
MSWLF units accepting waste aft**
October 9.1991, but ceasing receipt of
waste before October 9.1993, to
complete closure activities et their
MSWLF unit within six months of last
receipt of waste by placing e cover on
the unit that is in compliance with the
cover requirements of 40 CFR 25&80(a).
Owners and operators who fell to
complete cover installation within «fa<«
six month period an subject to all of the
requirements of *hT *""1fl*l criteria.
Since publication of the Final
Che Agency has received e number of
inquiries regarding the practicality of
requiring covartobe placed within six
months of last receipt of waste. Owners.
end operaton that wish totccapt waste
until the lost possible date before being
subject to the full Subtitle 0 criteria
(i.e.. cease receipt of waste by October
9,1993) would be required to close
during the late tell/winter months of
October through March. Construction of
a landfill cover during winter weather
in some parts of the country would be
most difficult and would be subject to
the most delays that would "'•|rf it
difficult. If not impossible, to complete
within the six mouth timeframe
required.
To facilitate cover installation fur
those landfill ownen and operaton who
intend to cease receipt of waste by their
respective effective date, the Agency Is
today proposing to modify the
requirement that a cover be placed
within six months of lest receipt of
waste by replacing it with a requirement
that cover installation be completed by
a date certain—October 9.1994. Again.
should (he owner/operator fail to install
a cover by this new data, they would be
Eubfact to all of the requirements of part
258. Owners and operators of landfills
that are subject to the October 9.1993
effective date would then have one yew
to Install a cover, while owners and
operaton of 1™«<
-------
-93
20Z 39326
TABLE
SED CHAHOES TO T* EFFECTIVE DJTES OF -me MSWLF
IM
Her
m( by 1Cra« « M taHMi on Tdbri
krteandam
USWLFtrth Vul
«nvaon tf\ 40 CFR 9 »M(IJ
OBLK.UB4,
Oct I. tKS to oaw triteOct 8.
Oet». MM
Oet I. IBS fcx WKWLF tftta am *W
18H far USWJ ucfta
Ape. t, flW
Oct.*
muat aomety <
•• a*
VBLIa«aaKfer<
ttzraufbout today** poBoaad, nta.tb«
a unbar of
10
LudfiU ew
capilUy of wy Mull
iDgdutto&aCwal'a
Walk tba AgMcyfei
tba»a aparffir mmaanit, tha Agaacy i»
rwnucti&g OCWSMDU BtimacpacDof
lodar't prac«aaL IB nwtlCBlaa. £?A to
«p^j<-tKTtg cfiamaotB OB tW taax aMfoc
wpacu of today* Ptoooaak ft) T« daaqr
the aftedva data for landfllh aocBfXiaa;
100 TFD 01 IMS a&d ara lootad in aitbar
Qetabar
for parmrt
0« 1953 i?f m
(2) to dalay tha aflactive data of aB of
tb*MSWL?oitaria fartwayvanav
«n ldfill
pxopoaad ^ ...
Dacauaa of tb* dtnaMtieaicnaM aa
wuta gmwatad a* • mult of tb# Boodn
(2) utisQHr a cbMEBaiidi axttncion ia an
oparuan of MSVrifa In anw impacttd
by lb» Qaodba; to awat «fc»P«t 258
laajBtHMHKs; and (3>«badiefMSWLFr
accaptiaa; paatarthav 100 TTOrf wwta
alw »Mf now nqnin an «flactfn daw
, prochictivTt7i iDOtmtSon or
ao bin* (mt to
•cnenedmr MSVfUFi thrt hm ban
directly ilfactoi by U»Coodw«un tad
MSI7LF»lbat may ba toatri autetdi
oM BOOOM VMi, DQt WfB IVCBIW •
dnunide inowM* in «MI» w * fmth of
•ccnuBBoctf QM oooM iiftJuw u
IBOMM l» ibvTTD eritarfOB far IB
ttrtttuoB fl.ew pwtar tfavt 100 TTD) or
u addlQaaal tfaw octnuion far th»n
kndfillf (U., g^Htvr then dx nwntful
axaaptloa in 2SAI(fl; 0] to dalay tba DC. Bo
oou £ae all USWLF»aaUi
<1, Aagu/ottuy Znpoet Aaaiytis
Apnl 9, IMS; and (4j to nqian that
By thair lacpacSlvB tiffudna dana
eoniplata Soil COTBT iaitaJlatlon by
Qcb9bar9ul»M.
IB addition to tba af omaaottooad
ixraa*. tba Agancy ia conoemad about
tha meant Coodtag in midwaAaa ctatas
and tha ability af localitiM to minagB
tb« potaatially dramatic IBOMM in
tolid vpaxta uut may ba gsnerawd u «
niull of daan-op effona. Tiosa
u Include: (l) Whethar certain
IB • "
rub U « -Mfor nda-fcrtbe
purpoaa* of datara^^wiwdHr to
t_i^***"^ MB RIA. MQMOTW. vBdvtBK
propocttl. owoara/opaiaton of MSWLP*
tfaat niaal tbw awl) kadfilt aaaoption
of $ 23a.l(0 an pra«
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JUL 28 'S3 03= 53PM NflCO 202 3932630
P.12/13
Federal Register / Vol. 58. No. 143 / Wednesday. July 28. 1993 / Proposed Rules
40577
assumptions as tbotria the Regulatory
Impact Analytic fRIAJ developed for the
revised Criteria. For example, EPA
tuiimvd reduced cocts for ground-water
monitoring for landfills located la itatea
already requmng ground-wator
monitoring (39 states required ground*
water monitoring in 1991). This cut
Mtimatv was bated on an initial
universe of 1020 small landfills that
were assumed to close over time and
were replaced by fewer larger. Iocs
expensive regionalized landfills.
the Agency does not believe a
significant number of MSWLFa will
ttxperience corrective action cost* due to
the Court's decision for several reasons..
First of the small landfills that would
have qualified for the small landfill
exemption, it is difficult to estimate the
number of ihesa landfills (hat will •
continue to optuate now that they are
required to perform ground-water
monitoring. Many will choose to doce
because of these new requirements.
Second, it is highly unlikely that
continued operation of then small
landfills will result in ground-water
contamination that require <
action. Because these landfills generally
are located in dry areas receiving lass
than 23 inches of precipitation per year.
very little laachate will be available for •
release to the ground water.
Additionally, many of these small dry
landfills are situated tbove aquifers that
are located several hundred feet below
the ground surface, thereby creating a
significant natural barrier to threat of
contamination. Third, even if these
landfill ownen/aperaton detected •
contamination that would trigger
corrective action, the MSWLF criteria
currently allow the Director of a state
with an EPA-eppraved permit program
to waive corrective action under the
circumstances outlined in 40 CFR
25B.57(e).
Thus, given these factors, it is difficult
to estimate the national cost Impact of
corrective action on these small
landfills. The Agency believes that taw.
if any, would contaminate ground water
and be required to perform these clean-
up activities. However, if a landfill did
trigger corrective action in a state that
required clean-up, the Agency estimates
verage total
aarsTo
of corrective action for
over 20 yaarso corrective ac
that landfill would range from
approximately 9160.000 to $350.000 per
year. These costs assume pump and
treat clean-up technology and a 40-yuar
post-closure can periodV
Again, most of the cost assumptions
in this estimate are based on unit cost
assumptions from the Regulatory Impact
Analysis for the Revised Subtitle 0
Criteria found in docket number F-91-
CMLF-FFFFF. The Agency requests
comments on cost assumptions
including specifically the estimated
number of small landfills which would
be affected by today's proposed rule.
and the estimated costs of ground-water
monitoring and corrective action.
Because the proposed ruiemoking
doos not meet the definition of e major
regulation, the Agency is not conducting
a Regulatory Impact Analysis at this
time. Today's proposal has been
submitted to the Office of Management
and Budget (OMB) for review as
required by Executive Order 12291.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601 et sea.) requires an agency to
prepare, and make available far public
comment, a regulatory flexibility
analysis) that describes the impact of a
S reposed or final rule on small entities
•S.. small busiir*"**^* email
organizations, and small governmental
jurisdictions). No regulatory flexibility
analysis is required if the head of an
agency certifies the rule will not have
significant economic impact on e
€ii>i«t««ti«| number of "»"H entities.
The estimates1 of potential total
annuaiizad casts far specific landfills
are discussed above in Section K-A.
However, not all landfills will
experience these costs. Several landfills
are located in states that already require
ground-water monitoring, linen and
covers, and/or corrective action and
thus there would be little incremental
cost to these landfills due to the court
decision. In addition. EPA believe*
there will be a reduction in small
landfills over time as these landfills
close and communities regionalize.
Therefore, nnm cannot use *J^a miit f««t
figures died below to provide a national
estimate of cost impact due to the.
Court's decision. _
The proposed amendments to 40 CFR .
port 258. except for the provision
requiring dry/remote small landfills
accepting less than 20 TPD to perform
ground-water monitoring, has the
general effect of reducing the
requirements of the Part 258 criteria.
thereby imposing no
economic
ill entities. The
provision requiring dry/remote landfills
accepting less than 20 TPUto perform
ground-water monitoring could have a
small entities. Agency data indicate that
economic Impact will vary with size. .
with larger landfills experiencing*
relatively moderate cost increase when
compared to smaller landfills where
economies of f*«l" an not available.
Agency data indicate that the total
annualized costs of ground-water
monitoring for a MSWLF unit accepting
approximately 10 TPD would cost about
540 to 550 per household, while mr
landfills accepting lesa than one TPD
(the Agency estimates that
approximately one-third to one-half of
all MSWLF units that qualify for the
exemption are in this size category), the
annualized cast per household could
range from 5270 to 5330 per household.
Toe higher number in these ranges
assumes ***** the existing t""
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JUL E9 '33 .^
Wadaan»y, friy a. 1993 / Prcpnud Met
' P.13/13
|BlyZZ,im.
For nan
title 40. chapter Lot l
PAUT 2W-CWTERIA FOR KMORAL
SOLD WASTELANDHLUtEFF. 10^-
*•«•• i ji 48 U&C MPWCT. M4am
•A Mcafcfc 31 IUC. IMfiWs** W.
2. Section 259.1 to mended by
*
introductory tact. H tte owwr or oparator of • i
MSWLF nat anting MSWLF M*. or
latamli
ttba- art! that haaaiam lad th»
axaoptioa te pangcapk OXlJO) or
ffl(lXU) of thk aaeboa. tb* mar or
operator Must notify tha atatt Dbvclor of
ocb oonmaaatkai and. taawaltar,
comply wUh subpan D of tMs pan.
ffl Sobpart G of thhrp^ if •fiactn*
Apnl 9. 199S. ovatpt farMSWLP units
mooting tha raqoinmaato of pang»pii
[fHD of tbw laetkn. in wlmi can ON
1995.
3. Sacdon 2S»i is saandad by
•ddiat defiaittoaa for "Indian laada or
Indian CoBDtjy" and "Indian »»*•>» or
Tribe" in alphabetical otdar to raad aa
fallow*
la&an loads or Indian counter HMM
(1) AH land wfthin th« fimftt of any
kdiao neerratioa uadtr dw
juiadiebon of ebt tMtod Statai
iuuaaoo/aoy patent, and mehuang
-• **
(2) All dependent hdian eomnuiflhr
wTtfafa^B boidm of *» ihuttd SDOM
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§§ 2MJ1 taroegb; 256.55 by Octobar 9.
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• • • * f
5. Section 258.70 it amended by
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I2SL7O *fflt\t i uftiy aad etlecd^ data.
» • V • • •
(b) The raojuraneaft of this section
ara sfbctln Apnl 9. 1995 except for
MSWU7 units nMeting the oondrtnns of
-------
its' t
I II f I
O'-S >10£
CONFERENCE OF SOUTHERN COUNTIES, AS8OCZATZOH
P. O. BOX 2486
PEACHTREE CITY, GEORGIA 30269
JULY 1993 - FIRST EDITION
THINGS TO COME - Welcome to the first newsletter for CSCA
members. This newsletter will contain CSCA Bits and Pl»o*«
of environmental news to assist you on issues facing the State
and Local Governments.
INSIDE EPA - JUNE 11, 1993
EPA PROGRAMS DIRECTED TO REDUCE
IMPACT OF REGULATIONS ON SMALL
COMMUNITIES!
EPA has instructed its program
offices to reduce the burden of
regulations on small communi-
ties. This has been praised as
a major emphasis on addressing
the burgeoning costs of envi-
ronmental mandates on small
towns.
At issue is the REGULATORY
FLEXIBILITY ACT Of 1980. The
so-called "reg-flex" requires
federal agencies to conduct
analyses on proposed regula-
tions expected to impact small
entities — including commun-
ities and business.
The analysis will include
the development of "compliance
alternatives" when "reg-flex"
requirements kick-in.
EPA LEGAL OPINION IMPACTS EPA
ADVISORY COMMITTEES, "REG NEGS"
A legal opinion issued by EPA's
Office of General Counsel has
threatened to shut down EPA
Advisory Committees by barring
committees from using contract
dollars to pay for state,
municipal, and non-profit par-
ticipants to attend. Many of
the EPA committees convened
under the Federal Advisory Com-
mittee Act (FACA) have been
using funds set aside for con-
tractors to pay travel costs
for committee advisors.
OGC's ruling places the
burden of paying the travel
from the agency's "PRO" funds.
"PRO" (personnel, resources &
operations) are the agency's
general operating accounts.
Sources in the agency have said
the PRO accounts are already
short and barely covers the
agency's necessary activities.
NOTE! The agency has two
appropriations - one is the PRO
and the other is AC&C funding
grants, contracts, interagency
agreements. The AC&C accounts
funded items outside the day to
day operations of the agency.
The problem could get even
worse if there is any truth to
the possibilities that prior
FACA travel will have to be
paid back to the AC&C from the
PRO accounts. This is the type
item the IG normally start an
investigation on.
-------
H.R. 2242, THE VOLUNTARY
ENVIRONMENTAL CLEAN ACT:
House and Energy & Commerce -
transportation and hazardous
materials subcommittee Chair-
man Al Swift (D-WVA) introduced
the bill on May 24, 1993. It
would require EPA to offer
grants to states to create
voluntary cleanup oversight
programs that would have to
meet minimum federal criteria.
The program would not set
national cleanup standards or
mandate particular cleanup
techniques, as some environ-
mentalists have urged, and it
would not allow EPA to reduce a
party's Superfund liability in
exchange for cleanups, as
industry groups and some at EPA
have urged.
SAFE DRINKING WATER ACT POND
WHITE HOUSE POSITION PAPER:
A statement of principles is
under attack by state drinking
water officials because it
would not allow states to issue
grants to water systems under
the NEW DRINKING WATER LOAN
PROGRAM.
The issue is over the
statement of principles for
implementing the proposed $4.6
billion dollar state revolving
loan fund. It has led to a
battle over jurisdiction
between the House Energy &
commerce health and environment
sub- committee, Chairman Henry
Waxman (D-CA) and House Public
Works and Transportation
Committee Chairman• Norman
Mineta (D-CA).
One of the issues appears
to be over the concept of "zero
interest" or "negative inter-
est" loans, in which a state
forgoes interest payments or is
only required to pay back a
portion of the principal.
State officials have stated
that many do not have the
ability to pay back loans with
interest and that is why they
are in trouble.
Another issue is over the
20% state matching fund in the
first year. Many feel that
this will discourage many
states from participating.
CSCA members need to
follow this closely because of
the impact on the local level
who will borrow the funds.
INSIDE EPA - ENVIRONMENTAL
POLICY ALERT - JUNE 23, 1993
T.»nnM LIlBILTTTl 8UPBRFUND
Members of Congress have
renewed efforts to protect
lenders from Superfund liabil-
ity and introduced bill in both
House and Senate. Lenders are
supporting the legislation
saying it will relieve the
credit crunch, according to
banking industry rule.
House Representative John
Lafalce (D-NY) would amend both
Superfund and RCRA limiting the
liabilities of lenders and
fiduciaries which hold "indicia
of ownership primarily to
protect a security interest in
property".
The Senate bill introduced
by Senator Alfonse D'Amato (R-
NY) is similar to a measure
passed in the Senate last year.
There is a current case under
appeal in the circuit court.
Frank J. Kelley, Michigan
Attorney General v. EPA, CMA v.
EPA, U. S. Court of Appeals for
the District of Columbia
Circuit, No. 92-1312, June 2,
1993. Dispute over EPA
authority to define liability
under CERCLA.
-------
fiBCX
A plan to trade recyclable
materials on the Chicago Board
of Trade has been agreed to by
CBOT and the Recycling Advisory
Committee of the National
Recycling Coalition.
The trading will include
cardboard, plastics and glass
on an electronic bulletin-board
system in Chicago. The hope is
to standardize the pricing
system and solidify the market.
court
The U. 5. Supreme Court has
decided to settle a dispute
between two lower courts on
whether municipal solid waste
incinerator ash is subject to
regulation under RCRA if the
ash exhibits hazardous
characteristics. At issue is
Section 3001(1) of RCRA, which
exempts energy-recovering
municipal solid waste
incinerators from certain
hazardous waste regulatory
requirements if such facilities
accept non-hazardous household
and commercial solid waste.
Environmental Defense Fund v.
Wheel abr a tor Technologies, Inc.
8UP1
COURT -
President Clinton's pick for
the Supreme Court, Judge Ruth
Bader Ginsburg is considered
an able jurist but called non-
ideological. Sources claim she
takes a very lawyer-like
approach to environmental
issues.
Case decisions by Judge
Ginsburg included:
1. Natural Resources Defense
council v. Gorsuch, 685 F.2d
718
2. HRDC V. Hodel, 865 F.2d 288
3. National Coal Association
V. Lujaa, 979 F2d 1548 (1992).
Pollution Prevention Neva - EPA
CALLS PRSTOUTXOH
ULL BTKZC** AY BPA
In an Earth Day statement,
EPA's new Administrator Carol
Browner declared that
henceforth "pollution
prevention will be the central
ethic in everything we do at
EPA".
The new approach will have
five key parts:
1. incorporating prevention
as the principle of first
choice in all regulatory
activities;
2 building a national
network of prevention programs
among state, local, and tribal
governments ;
3. expanding EPA budget
allocations for "green"
programs;
4. stepping up dissemination
of information to promote
prevention and track progress;
5. developing partnerships
for technological innovation
including a new, interagency
Environmental Technology
Initiative.
The Administrator stated:
"We believe that by moving our
focus upstream, by emphasizing
innovation and source reduction
measures over end-of-the-pipe
regulation, we can blaze a new
trail of lower environmental
costs, improved environmental
protection and public health,
and increased national economic
competitiveness.N
World wastes - Articles
LSOAL - BY BARRY BHANOFF -
1. Groups seek Environmental
Equity
2. Who's to Blame if Waste
Runs Out?
(Enclosed)
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LEGAL
Groups Seek Environmental Equity
s if enough work were not available
for ctvll rights and poverty lawyers,
ey are adding a new specialty to
the services they provide to non-white and
disadvantaged communities — helping
these groups fight pollution In court.
Environmental poverty lawyers still use
proven methods to help their clients, forc-
ing government agencies to release stud-
ies and prodding cities and counties to
hold meaningful public hearings on pro-
posed environmental projects. Tougher
tactics — such as filing suits against
developers, waste firms and government
agencies, alleging racial or ethnic bias in
siting decisions — are much riskier.
Plaintiffs often have a hard time proving
Intentional discrimination. Com-
munities and companies have had ^
relatively little trouble explaining
that lower land prices make certain
neighborhoods more attractive as
sites for landfills or Incinerators.
Three years ago. the California
Rural Legal Assistance program
started the first legal services pro-
ject aimed at defending the poor
against pollution hazards. One of Its
lawyers now heads the recently
formed Environmental Poverty Law
Working Group, a national clearing-
house for poverty lawyers who han-
dle environmental cases.
Earlier this year, the NAACP Legal
and Defense Education fund spon-
sored a "People of Color Environ-
mental Summit" In Baltimore. At
the conference, lawyers, activists,
physicians and public policy analysts discussed how to
Improve legal protection for minorities who face possible
adverse health effects from proposed environmental
projects.
Environmental poverty lawyers take a "bottom-up"
approach, going to court to secure for their clients Infor-
mation and participation in the decision-making pro-
cess. For example. Hispanic residents of Kettleman City,
Calif., aided by CRCLA lawyers, sued Waste Manage-
ment and the local county supervisors to stop develop-
ment of a hazardous waste incinerator. Ruling that the
county denied the plaintiffs "meaningful Involvement" In
the siting process, a local Judge Invalidated the county's
approval of the facility. Meantime. In federal court, the
Kettleman City residents have filed a civil rights suit
alleging that their mostly Spanish-speaking neighbor-
hood was targeted for the plant with unlawful racial and
ethnic motives.
Watte Violator* Fined Leas In Minority Areas.
Toxic waste law violators in minority communities
By Barry Shanoff
The columnist is on envi-
ronmental attorney in
Washington, D.C.. and
former enforcement coun-
sel wtth the United States
Environmental Protection
Agency.
Community leaders
are channeling civil
rights activism into
environmental
awareness, seeking
'environmental
justice1 as well as
prevention and
equal protection.
receive lower fines than those Imposed
on violators in predominantly white
areas, according to a study by The
National Law Journal.
The NLJ Investigation, which looked at
Superfund waste sites in residential
areas, also found that decision-making is
slower-paced for hazards in non-white
communities and that cleanup solutions
there tend to be less stringent than what
technical consultants and engineers rec-
ommend.
Meantime, a growing number of com-
munity leaders are channeling civil rights
activism into environmental awareness,
seeking not only "environmental Justice"
from the Environmental Protection Ag-
ency and federal lawmakers, but
— prevention and equal protection as
well.
The NLJ findings, based on an
eight-month analysis of census data
and EPA files and records at nearly
1,200 Superfund sites. Include the
following:
• Fines and penalties at haz-
ardous waste sites In white neigh-
borhoods were about five times
higher than at sites in areas with
large minority populations.
• Fines and penalties under all
federal environmental laws (air.
water, waste) were nearly 50 percent
higher In white areas than In non-
white areas.
• Abandoned toxic waste sites In
minority communities wait 20 per-
cent longer for priority listing than
do sites In white areas.
EPA lawyers insist that progress, prosecution and
penalties depend on the specifics of each site. Including
Its particular technical problems and legal nuances.
"We want to guarantee that no segment of society is
bearing a disproportionate amount of the consequences
of pollution." said an EPA enforcement official.
Community leaders, however, point to the disparate
racial Impact which, they concede, has been created not
willfully but through Indifference.
"Environmental justice" proponents think things will
Improve only If they can pressure federal officials to add
race and wealth to the matrix that decides how and
when hazardous waste sites are cleaned up, who pays
and how much.
Ominously, the NLJ study cites a confidential memo
from a federal official earlier this year "Long simmering
resentment In the minority and Native American com-
munities about environmental fairness could soon be
one of the most politically explosive environmental
issues yet to emerge."
7 4
W • V I fl —
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LEGAL
Who's To Blame If Waste Runs Out?
•••Joo little garbage. An "undernour-
ished" resource recovery facility.
I Rising unit costs. Put or pay.
Who's to blame? Putting a twist on Dick
the Butcher's comment In Shakes-
peare's Henry VI. Part U. The first thing
let's do. we kill all the consultants."
La Crosse County. Wls.. which owned
and operated a landfill, engaged Black &
Veatch (B&V) to do a feasibility study of
resource recovery alternatives. B&Vs re-
port estimated the average quantity of
available waste, analyzed alternative
waste disposal methods (continued
landfllllng vs. mass burn or RDF) ^
and recommended the construction
of a 200 tpd mass bum facility.
The county accepted the recom-
mendation, and asked B&V to select
a qualified vendor. During the nego-
tiations with prospective vendors.
the county, thinking it might have a
conflict of Interest, replaced B&V
with Gershman. Brickner & Bratton
(GBB). The county and GBB contin-
ued to evaluate the relative merits of
the mass burn versus RDF propos-
als. They also studied reports on
waste composition, waste generation
and landfill disposal. Eventually, the
county and GBB were satisfied that
sufficient waste was available to
meet contract guarantees; The
county signed a 20-year contract
with Northern States Power (NSP) for an RDF facility.
obligating the county to provide 73.000 tons of process-
able solid waste each year and penalizing the county If
It failed to deliver the guaranteed amount.
Thereafter. GBB and the county signed an agreement
for consulting services for the construction and start-up
phases of the project When commercial operation of the
facility began, deliveries of acceptable waste to the facili-
ty did not meet the guaranteed tonnages. Inexplicably,
the county did not enforce its legally Intact flow control
ordinance. Instead, local officials sought agreements
with neighboring communities to provide waste to the
facility. Meantime, experts predicted consistent short-
falls In tonnage throughout the 20-year contract.
The county pondered its options and stared worriedly
at the calendar. The statute of limitations would soon
eliminate any legal resource, so the county filed suit
against B&V and GBB. charging that 1) B&V had negli-
gently overestimated the amount of processable waste
in the county and that GBB had negligently failed to
correct B&Vs overassessment and 2) B&V and GBB
were negligent in falling to advise the county that land-
filling would be significantly less expensive over 20
years than resource recovery.
After a trial in federal district court, the Jury returned
By Barry Shanoff
The columnist Is an envi-
ronmental attorney In
Washington, D.C.
The consultants
argued that they
warned the county
of the importance
of enforcing its flow
control ordinance
and about the
variability of future
waste quantities.
a verdict finding all parties negligent, but
saddling the defendants with 88 percent
of the fault: B&V with 66 percent. GBB
with 22 percent.
In a post-trial motion to overturn the
verdict. B&V and GBB Insisted that they
had examined all relevant records In
preparing Its estimates and that they had
looked askance at the county's after-the-
fact figures. Moreover. B&V and GBB
argued that they had warned the county
about the Importance of enforcing its flow
control ordinance, about variability of
future waste quantities and compo-
•• sltion, and about future legislation
such as recycling laws. Indeed, at
the trial the county did not dispute
the fact that the defendants had
alerted officials about these risks.
B&V pointed to evidence that It had
urged the county to conduct a full-
blown risk assessment, and had of-
fered to perform the work. B&V
charged that It was nonsense for
the county to claim that B&V was li-
able for consequences which It had
predicted and had offered to help
the county avoid.
This argument misses the point."
said U.S. District Judge Barbara
Crabb. The warnings do not relieve
B&V of its responsibility to provide
what it said it had provided: an ac-
curate waste stream analysis. The
report carried no warnings to plaintiff that the feasibility
study Itself might be based on erroneous information.
Plaintiff did not assume this particular risk."
For Its part, GBB pointed out that the county failed to
prove that the resource recovery system did not meet
the county's goals: reduced landfllling In an environ-
mentally acceptable manner and at reasonable cost.
I.e.. a cost at or below what GBB predicted before the
county board voted on the project.
Conceding that not everyone who heard the evidence
would have decided the same as the jury did. Judge
Crabb nevertheless refused to set aside the Jury verdict.
Groping for a way to explain the jury's conclusion, she
pieced together snippets of testimony that the Jury
might reasonably have found convincing — I) that the
county board had reason to believe that the RDF system
would be cheaper In the long run than landfllllng and 2)
that GBB negligently failed to question the ability of the
county to guarantee an adequate supply of solid waste
to the facility. Judge Crabb entered Judgment against
the defendants for nearly $2.6 million.
Convinced that their performance for the county was
professional and that the resource recovery facility was
a solid choice. B&V and GBB appealed the judgment.
The appeal will be described in June's legal column.
6 •
t • •
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LEGAL
When The Waste Runs Out, Part
This article concludes last month's account
of how a Wisconsin county convinced a
jury that its consulting engineers had poor-
ly advised them on the viability of a re-
source recovery facility and had overesti-
mated the amount of available wastes.
[lack & Veatch (B & V) and Gersh-
man. Brickner & Bratton (GBB)
took on a formidable task In testify-
ing to a jury about complicated concepts
— solid waste planning, flow control and
service contracting. For its part, the Jury
seemed bent on finding a way to
compensate the county — even If It ••
meant grasping for slim evidence.
On appeal, a three-judge panel
upheld the Jury verdict and Judg-
ment against B&V and GBB. The
appellate court ruled that resolving
the issue of the consultants' negli-
gence partly depended on why La
Crosse County. Wis., wanted an
alternative to landfllllng.
B&V and GBB argued that the
trial court was wrong In allowing
several county supervisors to testify
about why they had voted for the
resource recovery project. (Wiscon-
sin law does not allow individual
members of a legislative body to tes-
tify In court about why the body en-
acted a particular bill or to contra-
dict the plain language of an en-
actment.) The authorizing resolution stated that the
County wanted "a system of disposal of solid waste that
will reduce the volume of such waste that must be land-
filled ... at a reasonable cost ..." Nevertheless, the trial
court permitted the supervisors to testify, in effect, that
although they said "reasonable cost" in their resolution.
they really voted for the RDF system because the con-
sultants claimed it would be the cheapest alternative.
The consultants were right about the Inadmissible
testimony, ruled the appeals judges. The Jury could eas-
ily have interpreted the cumulative testimony of the
supervisors — purportedly reciting their Individual
motives for approving the contract — as explanations of
the entire board's Intent.
The trial Judge's error was harmless, however, the
judges concluded. Putting aside the challenged testimo-
ny, the trial produced a sufficient amount of other evi-
dence, as the appeals court saw It. from which the Jury
could have Inferred that the county relied on the con-
sultants' advice that the RDF facility would be the least
expensive choice In the long run. The proof: minutes of
official board and committee meetings where county of-
ficials expressed their belief that B&Vs studies "showed
a link between a resource recovery disposal system and
lower overall costs." Indeed, the appeals court noted.
By Barry Shanoff
The columnist is an envi-
ronmental attorney In
Washington, D.C.
the B&V feasibility study was essentially
a "cost-benefit comparison of the various
disposal systems."
Such proof, the appeals court said.
was enough to allow the jury to consider
this question: Did the county have a rea-
sonable basis for relying on the consul-
tants' recommendation of an RDF facility
as the long-term least expensive solution
to waste disposal? The county produced
sufficient evidence, the court concluded.
to rule out a directed verdict for the con-
sultants — even though others who re-
viewed the evidence might not have
reached the same conclusion.
The court concluded
that the county
produced sufficient
evidence to rule out
a directed verdict for
the consultants —
but others might
not have reached
the same conclusion.
Hazards Of Ownership. A federal
district Judge In California refused
to dismiss a CERCLA cost recovery
case against a company that
"owned" a contaminated site for the
few minutes It acted as an Interme-
diary in a real estate transaction.
After being named a defendant.
the company. El Camlno. asked the
Judge for a prompt, up-front ruling
on its liability. El Camino conceded
that the site was contaminated dur-
ing the seconds It. strictly speaking,
owned the site. The firm stressed
that it held title to the property to
facilitate a transaction between the
true interested parties, and never
handled any hazardous substances.
A property owner faces liability under CERCLA If dis-
posal occurs during its ownership. The law defines "dis-
posal" as "the discharge, deposit. Injection, dumping,
spilling, leaking or placing of any solid waste or haz-
ardous waste on to ... any land." Courts have held own-
ers liable for passive leakage of hazardous waste under
the CERCLA definition of "disposal" without active con-
duct by the owner. For example, a federal appeals court
ruled that "passive owners could be held liable ... (for)
simply owning property when hazardous waste leaked
from storage tanks on the premises." (Nurad Inc. v.
Hooper & Sons Co.. 966 F.2d 837. 4th Cir. 1992).
The district Judge In California accepted the apparent
premise of the Nurad decision: CERCLA liability does
not depend on affirmative conduct, or else owners might
escape responsibility by standing Idle. Moreover, noted
the Judge. CERCLA's strict liability then rules out any
consideration of culpability. As for E) Camlno's argu-
ment that It had owned the site for only 60 seconds, the
Judge again embraced Nurad: "Such equitable consider-
ations as the duration of ownership will be relevant
when the district court allocates response costs among
the liable parties." Meantime. El Camlno will be forced
to participate In a lawsuit at considerable expense, al-
though Its own liability will likely be negligible.
14*
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