[GRRN] NRC ALERT - Comments Due to EPA 10/6 on Bioreactor Landfills

From: Gary Liss (gary@garyliss.com)
Date: Tue Oct 03 2000 - 15:08:10 EDT

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    (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
    - 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

    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.


    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.


    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

    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

    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

    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

    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.


    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

    (3) Maintaining even wetting by the recirculation system to avoid
    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.


    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

    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.


    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.


    Clifford P. Case, III

    Gary Liss
    Fax: 916-652-0485

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