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Last modified: March 22, 2019
Comments in Opposition to Proposed Rule
Deregulating Municipal Solid Waste Landfills

by Grassroots Recycling Network, Natural Resources
Defense Council and Friends of the Earth

Submitted August 9, 2002 to the U.S. Environmental Protection Agency
Docket F-2002-RDMP-FFFFF
State Research, Development and Demonstration Permits for MSW Landfills

EXECUTIVE SUMMARY

In 1984 Congress enacted the Hazardous and Solid Waste Amendments (HSWA) to the Resource Conservation and Recovery Act of 1976 (RCRA), the core statute establishing a regulatory system for landfills. Among other things, those amendments required the Environmental Protection Agency (EPA) to promulgate national minimum standards for the siting, design, operation and closure of municipal solid waste (MSW) landfills. The national standards were to insure that “there is no reasonable probability of adverse effects on health or the environment” from a polluting landfills.

In 1991, EPA promulgated the first national standards for municipal landfills, which were, in general, implemented by a program under EPA supervision of State permitting consistent with those federal criteria. These are what many refer to as the Subtitle D regs (named after the section of HSWA where the MSW requirements are found). This federal/state partnership paralleled the enforcement system used for protecting the air and surface waters from pollution that had been enacted over the years since 1970, namely an overarching structure of national minimums accompanied by federally supervised permitting and enforcement by the States within those national boundaries and under federal supervision.

This summer, EPA proposed to radically alter that structure for landfills. It is proposing to create a new rule that would permit most States to waive compliance with most design, operation and cover standards for municipal landfills.

EPA claims that the purpose of the proposed rule is to encourage innovation. However, GRRN believes that this claim is a thinly disguised and illegal ruse to deregulate landfill permitting, based upon the following:

  1. There is no oversight of the many waivers that the States are authorized to grant and whether there really is anything “innovative” about a permit application or whether the innovation’s gains offset the waivers to provide equivalent environmental protection.
  2. There is no definition of the word “innovation” that, as a practical matter, in any limits the possibilities of waivers to virtually any applicant. Moreover, there is already in the U.S.Code a provision that already permits variances from the national minimums that provides equivalent protection. But that section is administered by the EPA to insure federal consistency: it does not delegate that power to the States, as the proposed rule does.
  3. There is no specificity about how environmental equivalence between the “innovation” and the existing rules is to be established. Coupled with the absence of federal supervision and the ersatz requirement becomes effectively meaningless.
  4. The waivers can be granted for up to 12 years, which is long enough for most landfill cells to complete their lives, and far longer than needed for most tests. Another existing variance program to encourage innovation for hazardous waste landfills is limited to just 4 years.

True experimentation intended to provide data that may be used to revise the present national landfill criteria cannot be done without a consistently applied set of questions to be answered and uniform protocols for answering them, including controls, statistical sampling and reliable field measurements, as laid out in the scientific method. The existing rule that permits EPA consideration of innovative alternatives could well be the vehicle for valid scientific investigation of those alternatives. But, dispersing the locus of investigation among 49 different States and territories would only dissipate any ability to collect comparable valid scientific data upon which rational decisions might be made. Indeed, if there is a bona fide interest in spurring innovative research that can be used to improve the development of a new set of landfill criteria, the proposed rule would be the very antithesis of how a responsible agency would proceed to process applications seeking waivers for testing of innovative approaches.

Read the full comments [pdf] from GRRN, NRDC and FOE


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