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Prior to the Dialog held last August 2004 in San Francisco, I released a
series of papers that addressed what we call "Managing Discards in the New
Millennium." These papers were presented to stimulate the discussion at the dialog.
For the next nine weeks under the title Dialog Paper #, I will release each
document to the four lists (GAIA, ZWIA, CRRA and Greenyes). Each list is not
linked together, but I would request your response be to "all" or to the
author. The ultimate result of this discussion will be a rewritten and edited
version each document. All the papers can be downloaded from

By Peter Anderson, Executive Director, Center for a Competitive Waste Industry
Introduction: Except for non-ferrous metals and high grade paper, after 15
years of the modern recycling movement, recovery efforts still struggle to
compete in the marketplace, at the same time as policy mandates intended to
encourage diversion erode. One of the major causes of the recyclers’ malaise is the
fact that the tipping fees at landfills, against which we directly compete,
have fallen instead of risen following the adoption of Subtitle D regulations, in
many cases to below $20 per ton.
How has the waste industry brought down its costs to levels that most of us
cannot compete against? It’s simple really. They have cleverly pushed most of
the impacts from leaking landfills into the future, while they simply don’t
measure the current impacts from landfill gas on global warming and neighbor’s
health. We now know that the much vaunted barriers in so-called dry tomb
landfills will “ultimately fail,” (EPA’s words), thereby only delaying instead of
preventing pollution.
But, don’t financial assurance regulations for long term care prevent this
from happening? No, they most certainly do not, as documented in a 130-page
report we have prepared at the request of GRRN and Sierra Club California for the
California Integrated Waste Management Board. That investigation not only
found that the assurances currently used are meaningless to address the challenges
ahead, but also the nostrums that progressives have proposed have been
Here is a summary of the report’s findings:
Traditional Debate: Up until now, the debate in almost every forum over
financial assurance has focused on:
Should the post-closure period be longer than 30 years?
Which of the current assurance mechanisms for routine care during the legally
defined post-closure period are not adequate and which among the rest are
This way of framing the debate completely misses the real issues for states
if they are is to protect itself from billions of dollars in liabilities at
orphaned landfill sites in the future that are privately owned. The concerns are
less pressing for municipally owned landfills because, when the future
problems arise, local governments will be around to respond and have the capability
to tax.
Major Unasked Questions: In addition to the traditional issues about a longer
post-closure period and the relative value of the current assurance
mechanisms for routine post-closure care, the critical unasked questions we need to
address are:
Can any length period of care be adequate?
How are we going to provide for the full range of assurance costs that are
approximately 100 times greater than the costs of routine care currently
Care Period Is Infinite. The overwhelming body of opinion is that there is a
fatal flaw in Subtitle D’s liner-based attempt to “entomb” the waste,
ostensibly in perpetuity. In fact, EPA itself admits that because all liners will “
ultimately fail,” the barriers only postpone, but do not prevent pollution in
the future.
The days following the end of post closure care is the time that rainfall
will reenter the site through breaches in the deteriorating cover layers. It is
then, after effective jurisdiction has lapsed, that leachate and landfall gas
formation will resume to soon escape, uncontrolled, into the environment.
This means that extending, or better assuring longer or improved post-closure
maintenance, will only further prolong, and thus also fail to resolve, the
inherent problem. Quite simply, the co-disposal in MSW landfills of small
generator hazardous wastes and the decomposable fraction of our waste stream in the
ground is, at best, extremely difficult to safely manage, and, at worst,
impossible to do so.
Full Range of Landfill Risks: Although not generally recognized, landfill
financial assurance only really covers minor routine care, things such as mowing
the lawn, monitoring samples and trucking leachate to sewage plants, that is
in the order of $5 million per site. The full range of possible costs from
abandoned sites, which almost certainly will become orphans of the state, are 100
times greater. Omitted are: Type of Risk DescriptionApproximate
Cumulative Cost/Site*
Non-Routine Care Replacing the final cover repeatedly, unclogging leachate
collection lines $20 million
Palliative Corrective Action
(current Superfund practice) One replacement of the cap, relief wells, slurry
walls, bottled water, fencing $50 million
Remedial Correction Action Excavating, pretreating and then reburying the
stabilized waste load $500 million**
Third Party Injuries Personal injury and property losses $1 billion

* These are only general costs to show the relative orders of magnitude
differences. They are not engineered figures.
** California is unique in having a provision requiring coverage of “
reasonably foreseeable” corrective action, which could be utilized to correct this
omission here. Unfortunately, with current postings for it varying between
$162,000 and $3.8 million, the requirement has yet to be meaningfully enforced.
Recommendations: The major challenge presented for a complete analysis of
financial assurance is to create a mechanism to address the largest risk factor,
remedial corrective action and third party injuries that are most likely to
arise after care and current assurance mechanisms end. To do that, the
instrument must meet each of these criteria:
Extend past the legal period of post-closure care, and
Offer coverage that both reflects probabilistic events and can, as a
practical matter, cover at least a significant part of the true risks.
While most reformers’ attention has focused on using trust funds to improve
firm assurance, in practice, that will fail to produce the intended result. For
one thing, a “lock box” is only good if there is money inside it. In neither
an administrative adjudication or in a legislative debate does the political
will exist to ramp up the amounts designated by two times, nonetheless 200
times. For another, the trust funds are only designed to last for the length of
the post-closure period, while the problems are expected to occur whenever that
period ends.
In the report, an innovate market based insurance approach is described to
meet these objectives that we call “Extended Environmental Impairment Landfill

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