NRC ADVOCACY ALERT
(Apologies for Cross Postings)
The EPA requested comments and information concerning the design and
performance of "bioreactor landfills" by Notice dated April 6, 2000 (65
Fed. Reg. 18014). NRC Founder Cliff Case, partner in CARTER, LEDYARD &
MILBURN, filed an official response on behalf of the National Recycling
Coalition, at the request of NRC staff and the NRC Policy Work Group
(PWG). The PWG worked with Cliff to draft these comments, particularly the
LEGAL [technical] aspects of this letter.
This is a great opportunity to impact on the EPA's oversight and regulation
of landfills in America. NRC found in its Levelling the Playing Field
Report last year that the subsidies of landfills negatively impacts
recycling. This is a once-in-a-decade opportunity to advance one of the
next frontiers of diversion - composting of all organic materials in the
waste stream. The NRC urges you to send in written comments as well that
support NRC comments below.
Please write or email EPA by this Friday, October 6, 2000, with the
following points:
- You support the comments and recommendations in the attached NRC
letter
- You believe that EPA's oversight and regulation of landfills needs
to be done recognizing its impact on other integrated waste management
alternatives; and
- EPA needs to evaluate alternative designs for bioreactor landfills
that could address concerns NRC raised, and
- EPA needs to evaluate alternatives to bioreactor landfills that
could minimize gas migration and leachate production.
Please forward your comments by October 6, 2000 to:
RCRA Docket Information Center
Office of Solid Waste (5305W)
U.S. Environmental Protection Agency Headquarters (EPA HQ)
1200 Pennsylvania Avenue, N.W.
Washington, DC 20460
Re: Docket No. F-2000-ALPA-FFFFF
Electronic Submittals: Please submit electronic
information through the Internet to: rcra-docket@epa.gov. Your
responses in electronic format must also be identified by docket
number F-2000-ALPA-FFFFF. You must provide your electronic submittals
as ASCII files and avoid the use of special characters and any form of
encryption. You should not submit electronically any confidential
business information (CBI). An original and two copies of CBI must be
submitted under separate cover to: RCRA CBI Document Control Officer,
Office of Solid Waste (5305W), U.S. EPA, 1200 Pennsylvania NW,
Washington, DC 20460.
If you would like a copy of the NRC's actual letter sent that includes more
detailed footnotes and formatting as a WORD attachment, please contact Gary
Liss < gary@garyliss.com> and he will send that to you.
**********************************************************************
National Recycling Coalition Input on EPA Bioreactor Landfill Docket
CARTER, LEDYARD & MILBURN
Counsellors at Law
2 Wall Street, New York, NY 10005-2072
(212) 732-3200; Fax (212) 732-3232
1401 Eye Street, N.W., Washington, DC 20005
(202) 898-1515
570 Lexington Avenue, New York, NY 10022-6837
(212) 371-2720
Clifford P. Case, Partner
Direct: (212) 238-8798
Email: case@clm.com
October 4, 2000
RCRA Docket Information Center
Office of Solid Waste (5305W)
U.S. Environmental Protection Agency Headquarters (EPA HQ)
1200 Pennsylvania Avenue, N.W.
Washington, DC 20460
Re: Docket No. F-2000-ALPA-FFFFF
To Whom It May Concern:
By Notice dated April 6, 2000 (65 Fed. Reg. 18014), the U. S. Environmental
Protection Agency ("EPA") requested comments and information concerning the
design and performance of so-called "bioreactor landfills." We are writing
in response to this request on behalf of our client, the National Recycling
Coalition, Inc. (the "Coalition").
The Coalition is a not-for-profit organization founded in 1978 and
dedicated to the advancement and improvement of recycling, source
reduction, composting and reuse by providing technical information,
education, training, outreach and advocacy services to its members in order
to conserve resources and benefit the environment. Its 5,000 members
include recycling professionals from the public and private sectors, large
and small businesses, and local, state and federal government
agencies. Twenty-six state recycling organizations are affiliated with the
Coalition. The Coalition thus has a strong and continuing interest in solid
waste disposal practices that are responsible, sustainable and ecologically
sound, both to protect the environment and to assure a level playing field
for recycling and other alternatives to landfills.
Because "bioreactor landfills" may be neither sustainable nor ecologically
sound, and because EPA appears thus far to have failed to consider
adequately bioreactors or any alternatives to them, we urge that EPA
proceed with caution. In particular, we call upon EPA to analyze
thoroughly - consistently with its obligations under the National
Environmental Policy Act, 42 U.S.C. §§4321 et seq. ("NEPA") - all
appropriate alternatives to the "bioreactor landfills" proposal.
INTRODUCTION
EPA's April 6 Notice stated that
In recent years, bioreactor landfills have gained recognition as a possible
innovation in solid waste management. The bioreactor landfill is generally
defined as a landfill operated to transform and more quickly stabilize the
readily and moderately decomposable organic constituents of the waste
stream by purposeful control to enhance microbiological processes.
Bioreactor landfills often employ liquid addition including leachate
recirculation, alternative cover designs, and state-of-the-art landfill gas
collection systems.
However, before addressing how to permit bioreactors, EPA should first set
the stage by defining the underlying problems that have led to this
investigation. Once that is done, EPA should consider the full range of
alternative options that might resolve those problems with the least
adverse environmental consequences. The proper vehicle for such an analysis
is, of course, an environmental impact statement. Given that alternatives
to bioreactors such as composting may well be far preferable, EPA cannot
proceed to develop bioreactor rules until such an analysis is carried out.
EPA is to be commended for its efforts a decade ago that developed what
was, at the time, a major advance in waste management practices. Through
its rule-making process based upon the 1984 Resource Conservation and
Recovery Act ("RCRA") amendments, EPA's Subtitle D regulations closed down
the nearly 5,000 unengineered open dumps across the county that posed a
threat to the environment. But now, sixteen years later, we have nearly a
decade of experience under the industry's belt operating the first
generation of the new engineered landfills. In those intervening years, we
have all learned much that can be used to achieve the long term goal of
protecting the environment from the risks posed whenever solid wastes with
hazardous and toxic components are discarded in the ground. Bioreactors are
just one among many options to address these concerns, and in investigating
them, EPA should revisit and reconsider its early landfill assumptions.
BACKGROUND FACTS
Among the lessons learned from the past decade is that current designs for
MSW landfilling are predicated upon two significant fallacies: that MSW is
less threatening than hazardous waste and that landfill containment systems
will function for the length of time the waste load remains a threat to the
environment.
The RCRA amendments decreed that the new generation of engineered landfills
under Subtitle D would handle "sanitary" waste. The rules enacted under
the statute then relied upon a single composite liner and cover as
barriers. These were combined with leachate collection, gas extraction and
monitoring systems, in an attempt to isolate from the environment the
leachable constituents in the municipal waste load for the period of time
that they posed a threat. As finally adopted, the regulations set a
post-closure period of 30 years (with undefined extensions) as the length
of time the waste needed to be isolated. Preliminary efforts to recognize
a longer term problem were deleted from the final rules, with perhaps, in
hindsight, imprudent recourse to the provision in Subtitle D permitting the
Agency to "take into consideration the practicable capabilities of such
facilities."
In any event, however, the constituents of what is legally defined to be
"sanitary" waste have been documented to be, in fact, essentially
indistinguishable from hazardous waste streams. As to what is required to
isolate hazardous waste, in its Subtitle C regulations, EPA concluded that
two sets of composite liners and leachate collection systems, among other
extra measures, are necessary to protect the environment. Also, it has
become increasingly apparent in recent years that the time for a MSW
landfill to reach the point at which the load becomes benign extends
hundreds of years, depending upon site-specific local conditions -- not 30
years.
EPA has repeatedly acknowledged that the containment systems prescribed in
the landfill rules will over time degrade and ultimately fail, most
recently in its proposed rule-making for the current composite liner
landfills currently in use, which led up to the promulgation of the rules
in 1991:
"…[E]ven the best liner and leachate collection systems will
ultimately fail due to natural deterioration, and recent improvements in
MSWLF containment technologies will be delayed by many decades at some
landfills."
This is the nub of the conundrum. Because of those same, limited-life
containment systems, the inevitable future containment failures will most
likely occur after the legal liabilities, monitoring systems and
responsible institutional structures established by the regulations no
longer exist. It is a sad thing to say, but the current landfill rules
appear to do more to protect the bond sureties than the environment. We
have simply shifted the problem from our children to our grandchildren, and
left a major clean up task for future generations that, financially, will
likely be of the magnitude of the Savings and Loan debacle in the 1980's,
or current Superfund clean up efforts.
BIOREACTOR PROBLEMS
Bioreactors represent, in effect, a proposal to substitute attempts to
accelerate decomposition through in-site recirculation for the present
entombment strategy. Proponents of bioreactor systems rarely explicitly
concede the inherent inadequacies with the current standards that militate
against entombment. But they do emphasize the hope, similar to that stated
in EPA's current Federal Register Notice, that recirculation will
"transform and more quickly stabilize the readily and moderately
decompostable organic constituents of the waste stream" and thereby reduce
the leachate and gas formation that will occur after closure.
Proponents add that the cost of the basic piping and pumps for
recirculating leachate and accelerated gas extraction will be offset by
recirculating instead of treating leachate and by recovering 50% of the
airspace through higher final densities so that "bioreactors landfills save
money in the long-term."
However, at the same time, a number of major and potentially crippling
problems with bioreactors have been identified:
(1) Because much municipal waste is encased in plastic bags, only some
of which may be breached when the loads are compacted, a significant
fraction of the waste load will remain isolated from the recirculating
liquids and not be decomposed prior to landfill closure, absent pre-shredding.
(2) Installing effective gas extraction systems contemporaneous with
the onset of recirculation in order to capture the accelerated formation of
greenhouse and VOC gases - all at the same time that rapid settlement due
to that recirculation is ongoing - would seem to be exceedingly difficult
to accomplish. Indeed, present operational practices assume that gas is
vented for the first two years of a landfill cell's life, which is only
palatable in that case because gas generation ramps up slowly in a dry
landfill.
(3) Maintaining even wetting by the recirculation system to avoid
differential
settlement that could destabilize the site may be difficult.
(4) Avoiding excessive wetting near sidewalls, where breakouts might
occur following
saturation of the waste load, may also prove difficult without
well-controlled recirculation.
(5) Providing a liner/leachate collection system that will work
properly with the
far greater hydraulic loadings involved in bioreactors is not likely to be
achieved with
the current designs for non-hazardous municipal solid waste landfills,
absent (at a minimum) two composite liners and leachate collection systems.
According to experts in the field consulted by the Coalition's
representatives, none of the current research being undertaken today is
properly designed to address and resolve these outstanding issues.
To the extent that EPA's analysis in this proceeding confirms these
potential problems, as the Coalition believes likely, technical fixes to
resolve them may be developed. However, the costs of doing so through such
things as pre-shredding and double composite liners would probably
dramatically increase disposal costs in bioreactors as compared to
entombment landfills. This would suggest that political pressure would
arise to take environmental shortcuts in any final regulations that are
ultimately promulgated, with the result that the underlying problems would
remain unresolved.
In any event, and in addition to what this implies for expanding the
options that are considered (see below), the rationale for this proceeding
needs to be clarified. If recirculation needs to be pursued to reduce the
risks posed by entombment, that fact needs to be expressly stated. Only
then can we know whether the new sets of risks which bioreactors present
are outweighed by the clear and present threat posed by the thousands of
operating and closed landfills that were licensed earlier under Subtitle D
for dry tomb conditions. Were dry landfills perfectly safe, as their
proponents assert, there would not seem to be any reason to incur the
unknowns and risks posed by untested bioreactors.
ALTERNATIVES
There are alternative means to resolve the problem with land disposal
arising from the fact that discarding compostable material into the ground
threatens the environment. A primary one to consider is the separation of
compostables at the source in the home or commercial establishment, and
separate collection of these organic material streams. A variety of
collection and processing systems exist to accomplish this goal.
Already common throughout the U.S. today are systems that collect yard
trimmings (including grass clippings, leaves, and prunings) separately, for
processing often in windrow composting facilities. Increasingly, many
communities are studying or implementing new programs to collect
residential and/or commercial/institutional food discards, and
food-contaminated paper. The latter programs have been demonstrated
extensively in Europe, particularly the Netherlands, and are often combined
with collections of yard trimmings for maximum collection efficiencies.
Finally, some areas have begun to experiment with wet/dry systems for
composting. While wet/dry systems are not yet commonplace, there are a
number of first generation programs, including full-scale operations in
Guelph, Ontario, and pilot programs in San Francisco, California. These
are sufficient to develop meaningful data that can be compared in an
environmental impact statement against the demonstration bioreactor trials,
and also to show, in response to RCRA §4004(a), that they are a practical
alternative.
In all of these organic recycling systems (and undoubtedly in others as
well), the compostable fraction that is the source of the leachate and gas
generation in landfills never becomes mixed with the hazardous constituents
in municipal solid waste and discarded in the ground to threaten the
environment. Instead, it is composted into a soil amendment to help
restore agricultural productivity and in other horticultural applications.
It should also be noted that a movement away from acceptance of compostable
material at landfills is already the policy of the European Community,
which last year "set up a national strategy for the implementation of the
reduction of biodegradable waste going to landfills." Thus it should be
clear that the issues that we are raising for an alternatives analysis are
firmly grounded in professional solid waste practice today and not in any
way outside the bounds of a realistic or practical alternative.
EPA'S OBLIGATIONS TO CONSIDER ALTERNATIVES
Notably absent from EPA's April 6 Notice in this matter is any recognition
of EPA's duties under NEPA to "identify and assess the reasonable
alternatives to proposed actions that will avoid or minimize adverse
effects of these actions upon the quality of the human environment," and
to "integrate the NEPA process with other planning at the earliest possible
time to insure that planning and decisions reflect environmental values, to
avoid delays later in the process, and to head off potential
conflicts." Indeed, the only alternatives with which EPA appears to be
concerned in its Notice are alternative landfill liner designs. While EPA
requests information on such minutia as "relevant patent issues associated
with anaerobic, aerobic, or other bioreactor landfills," it nowhere asks
commenters to provide information on alternatives to the bioreactors
themselves. Perhaps EPA intends to consider alternatives to this proposal
at some later date, but such delay is clearly inconsistent with NEPA's
mandate to weigh alternatives "at the earliest possible time."
Although EPA's actions under certain statutes are exempted from
NEPA, there is no exemption from NEPA for an EPA rulemaking under
RCRA. It would only be possible to ignore NEPA here if EPA's action in
adopting rules for bioreactors could be considered to be not a "major
Federal action[] significantly affecting the human environment." But given
the impact such rules would have on thousands of major landfills across the
country, and the "irreversible and irretrievable commitments of
resources" which would be involved in a national policy favoring
bioreactors, a conclusion that such rules are anything other than "major
Federal action" triggering NEPA seems inconceivable. Once NEPA coverage is
conceded, it appears clear to us that the rulemaking process for
bioreactors cannot continue without development through the environmental
impact process of the costs and benefits of both bioreactors and their
alternatives, such as composting.
The Coalition looks forward to participating further in this matter as
EPA's analysis proceeds. Please feel free to contact me at (212) 238-8798
should you have any questions or require any additional information on the
issues we have raised above on behalf of the Coalition with respect to
EPA's bioreactor landfill proposal.
Sincerely,
Clifford P. Case, III
CPC:kr
Gary Liss
916-652-7850
Fax: 916-652-0485
Other Archives - Generated on : Tue Oct 03 2000 - 15:10:27 EDT