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By Eric P. Bock The
Congressional Agenda The first session of the 106th Congress has seen almost constant partisan bickering over almost all issues with very little legislation being enacted into law. At the same time, obstacles were raised by Congress for the federal agencies through "riders" on agency appropriation bills intended to block promulgation of specific new regulations and policies and through cutbacks in agency funding. All of this is expected to worsen in the second session of the 106th Congress, when it will experience the full weight of a high-stakes election year that will determine who controls the presidency, the House and Senate, and perhaps the makeup of the US Supreme Court if one or more justices retire. There are several pieces of legislation and policy matters impacting the management of MSW that Congress is expected to address in 2000. However, congressional action is expected to be limited to the introduction of legislation, committee hearings and oversight of particular federal agency actions, and more "riders" to appropriation bills.
House and Senate Republicans have been unable to reach agreement with the administration and the majority of Democrats on a comprehensive rewrite of the Superfund law (the Comprehensive Environmental Response, Compensation and Liability Act). currently in the House, crafting of a single bill from two Superfund reform bills, passed by different committees, has stalled because of disagreement between Republicans over whether the legislation should renew the tax used to fund the Superfund program. In the Senate, attempts to negotiate a reform bill were suspended several months ago over several difficult and unresolved issues. The key House and Senate Superfund bills provide liability relief to municipal owners and operators of MSW landfills, haulers of MSW, and recyclers of certain materials. The need to either codify EPA's Municipal (Superfund) Settlement Policy (or an alternative provision to limit liability of municipal owners and operators of codisposal landfills, as well as haulers—both public and private—that delivered MSW to the facility) is clear in light of recent legal challenges to the validity of the policy. In the first case in which application of EPA's policy was challenged, a federal district court in New York rejected EPA's proposed consent decree establishing cleanup cost liability for municipal contributors/haulers of MSW based on the policy's set amount of $5.30/ton of MSW delivered. The court said it had a responsibility under the Superfund law to review each settlement on its own merits and argued that use of the policy might be capricious when the estimated remediation costs are known. Based on the costs of closing a typical MSW landfill in New York State, the court concluded that the consent decree did not rationally approximate the municipalities share of liability and was substantially unfair. Resource Conservation and Recovery Act (RCRA). Although RCRA needs to be reauthorized by Congress, it is unlikely that anything more than hearings on proposed changes to the law will take place next year. Interstate Transport/Waste Flow Control (IT/WFC) of Solid Waste. The momentum for action on IT/WFC legislation in the 106th Congress has waned considerably, despite several bills pending in the House and Senate. Key senators opposed to providing local governments with WFC authority argue that in the years since the US Supreme Court's Carbone decision, local governments have been able to avoid defaulting on bonds, issued for MSW management facilities in reliance on such authority, through various methods that don't involve WFC. The sentiments of key House members are not much different. The prevailing Senate position on the interstate transport of MSW is that the solid waste market should be allowed to operate freely without state obstruction. On the other hand, Congressman Tom Bliley (R-VA), chair of the House Commerce Committee, declared that he would be willing to act on IT legislation if the governors of the key exporting and importing states can reach agreement on the content of legislation. Ability to reach such agreement has been unsuccessful so far. The IT issue is a volatile one, and such events as major media coverage of an accident involving interstate trucking of MSW could revive congressional interest. Remediation-Waste Legislation. In November 1998, EPA issued the Hazardous Waste Identification Rule (HWIR) for remediation wastes, which was intended to replace the 1993 CAMU rule relaxing the Subtitle C management standards for contaminated media generated by the remediation of contaminated sites. The previous April, the agency sent Congress specifications for proposed legislation to address those remediation waste management issues that were beyond EPA's authority under RCRA and not addressed by the HWIR. That legislation would have allowed disposal of contaminated remediation wastes to be disposed in a Subtitle D landfill under certain circumstances. In light of current settlement negotiations with environmental groups over the CAMU rule, EPA has urged Congress to not act on any remediation-wastes legislation in the belief that the need for federal legislation could be precluded. However, key House and Senate members would still like to move legislation that would either codify the original CAMU and HWIR rules or set out an alternative regulatory scheme for remediation wastes, but they are willing to await the outcome of the EPA settlement negotiations if timely concluded. Basel Convention Legislation. The administration has delayed until next year sending a bill to Congress that would ratify and obligate the United States to implement the United Nation's Basel Convention's restrictions on the international transport of hazardous wastes and recyclables. EPA has insisted that the legislation require precertification by US exporters that the receiving facility in the foreign country meet US environmental regulatory requirements. In addition, EPA wants to incorporate the Basel ban on the export of any hazardous waste or recyclables from a developed nation to an undeveloped nation which is opposed by the Departments of State and Commerce. The EPA-proposed legislation would apply these and other restrictions to the export of MSW, incinerator ash, infectious waste, PCB wastes, and "any additional wastes identified by [EPA] as necessary or appropriate" whether for disposal or recycling. Clean Air Act (CAA). There will be a systematic review in the Senate next year of each title of the CAA in anticipation of the introduction of reform legislation in the 107th Congress. Numerous aspects of the act's implementation by EPA impact the management of MSW and will likely be addressed in these hearings:
Clean Water Act (CWA). Although there will be no attempt to reform the CWA during the 106th Congress, there are several hot-button issues that will receive attention by this Congress. Industry continues to urge that the CWA be amended to make clear that neither EPA nor the US Army Corps can regulate every activity in wetlands. On the other hand, the two agencies have told Congress that they need new authority in the aftermath of a court decision striking down a rule that subjected excavation activities in wetlands to permit regulation under Section 404 if an incidental fallback of material occurred. Another issue is EPA's authority to regulate directly or indirectly nonpoint sources of pollution and to tighten limits in existing point-source discharge permits through its recently proposed total maximum daily load program for impaired water bodies. Occupational Safety & Health Act (OSHA). Congress is expected to hold oversight hearings upon release, expected this month, of OSHA's proposed ergonomics standard for preventing repetitive motion injuries in workplaces with significant manual operations. A like response is expected to the agency's upcoming safety and health-program rule that would require employers to establish comprehensive, specific work-site safety and health programs to ensure that a safe working environment is provided to all employees. Two other issues of relevance will resurface next year. The first is Democrat-sponsored legislation that would bring state, municipal, and county employees under jurisdiction of the federal OSHA. There is sentiment that public-sector employers providing services in competition with the private sector should be subject to the same safety and health regulations. The second is legislation that protects employers who conduct their own workplace safety and health inspections and show "good faith" in correcting discovered hazards from OSHA inspection and penalties. Democrats and labor unions have opposed such legislation. Taxes. The MSW management industry is expected to continue its pursuit of enactment of an annual tax credit for truck owners to compensate for the federal tax paid on diesel fuel used for the power take-off (PTO) functions, such as compactors on MSW collection trucks. The federal fuel tax is intended to repay the federal government for highway wear and tear, and its application to PTO fuel is not justified. The second is an effort to secure a new tax credit for landfill gas (LFG) utilization projects to replace the now-expired Section 29 of the Tax Code. Although Congress may provide a limited tax credit to LFG projects producing electricity this year under Section 45, the industry hopes to expand the provision to provide a tax credit to LFG projects selling the gas directly as a fuel and to provide a wider window during which new projects could be placed in service to qualify for the tax credit. Truck Safety. Concerns over safety in the trucking industry has prompted the House to pass a bill creating the National Motor Carrier Administration (NMCA). The NMCA would take on the responsibilities, effective October 1, 2000, of the Office of Motor Carrier and Highway Safety and focus exclusively on commercial motor-vehicle operators. Its main task would be the identification and enforcement targeting of high-risk motor vehicles, operators, and carriers. The Senate is to take action on a similar bill next year. Congress will closely monitor development of the recently proposed Federal Highway Administration rule prohibiting all motor carriers in interstate commerce found by the DOT to be "unfit" from operating commercial motor vehicles. Under the proposal, interstate commerce is defined to involve transportation from one state to or through another state or country (even if the end state is the originating state) or the transportation of material within one state that "is part of trade, traffic or transportation originating or terminating outside the state." Electric-Power Industry Restructuring/Waste-to-Energy and LFG-to-Energy Projects. Next year the House and Senate will continue their efforts to craft legislation to restructure the nation's electric-power industry that will almost certainly repeal Section 210 of the Public Utilities Regulatory Policies Act. That section requires electric utilities to purchase power from renewable-energy sources at their avoided cost. The renewable-energy industry is demanding that Congress encourage use of renewable-energy sources by establishing new programs such as the renewable portfolio standard (RPS) endorsed by the administration. The RPS would require all retail sellers of electricity to have a percentage of that electricity come from renewable energy sources, but the standard is opposed by key congressional members and traditional utilities. The MSW management industry has also been working to ensure that any provision for renewable-energy sources define that term to include MSW, whether directly combusted to generate electricity or as a source of LFG utilized for energy purposes.
Action by the Federal Agencies Over the next 12 months, several initiatives by federal agencies will require the close attention of the MSW management industry. In addition to the regulatory issues identified in Section II and those described below, the industry will have to respond other proposals:
Under EPA's existing "derived from" rule, leachate from MSW landfills would be classified as hazardous and subject to the strict management requirements of Subtitle C if previously disposed wastes are subsequently listed as hazardous by the agency. In 1998, EPA listed as hazardous four petroleum process wastes that had been disposed in MSW landfills in regions containing petrochemical facilities. Fortunately, at the urging of the solid waste industry, EPA temporarily deferred its decision to apply Subtitle C to the leachate until completion, expected this year, of its proposal to establish national effluent limitations for landfill leachate. The industry might again have to deal with this "retroactive" consequence when EPA makes its listing determinations next year for paint manufacturing wastes and for dye and pigment manufacturing wastes. Under RCRA, EPA can classify a waste containing chemical constituents as hazardous based on a number of criteria if it believes that there is a likelihood of possible mismanagement of the waste. Recent court decisions have required EPA to document actual mismanagement of the waste and the consequent adverse environmental impacts, and to review the need to list the waste as hazardous when other regulatory programs exist to protect the environment. In light of the court decisions, EPA is unlikely to go forward with the lead-based paint (LBP) debris rule, as it relates to the MSW landfill ban, unless it has enough evidence to justify it. EPA proposed the rule last December based in part on a determination that disposal in MSW landfills of LBP debris found to be nonhazardous under RCRA's toxicity characteristic rule creates a potential health hazard. The MSW landfill-disposal ban was based on EPA's reliance on inconclusive studies indicating that landfill leachate is acidic and could leach lead from the LBP debris into groundwater, a conclusion disputed by the solid waste industry. As part of EPA's ongoing effort to address certain small quantities of hazardous wastes for which it believes potential risk are small and regulation under the full requirements of Subtitle C is unwarranted, it is to make a decision next year on how it should regulate industrial-solvent–contaminated shop towels and wipes. In addition to the option of subjecting these wastes to the Universal Waste Rule, which streamlines collection, storage, and disposal requirements under Subtitle C, a route taken by the agency recently for used mercury-containing lamps, the agency is considering exempting the wastes from Subtitle C altogether if the solvent content does not exceed certain numerical limits. If this latter approach is taken, either the generator of the waste or the operator of the MSW landfill would have to screen such wastes to ensure that they do not contain more than the specified amount of solvent. The idea of allowing certain hazardous wastes to exit Subtitle C altogether based on the level of the hazardous constituents is at the heart of EPA's hazardous waste identification rule (HWIR) for high-volume, low-toxicity manufacturing-process wastes to be proposed before the end of this year. The agency recently announced it will issue a draft rule for public comment on sample exit levels for particular constituents. The intent, however, is to include a larger number of exit levels in the final rule to be issued in 2000. The draft rule also presents two management options based on the agency's "contingent management" rationale: removing federal jurisdiction over any waste exempted by the HWIR and relying on the states to manage the wastes, or requiring such waste to be specifically disposed of in a Subtitle D landfill. The separate HWIR on contaminated media also poses the possibility that certain remediation wastes with low levels of hazardous constituents may be allowed to exit Subtitle C and be disposed of in Subtitle D facilities. Both HWIR rulemakings raise concern in the MSW industry over potential Superfund liability at these facilities. Classifying low-risk wastes as nonhazardous under RCRA does not eliminate the possibility of future Superfund liability, which can be triggered by any concentration of a "hazardous substance." EPA can avoid regulating certain wastestreams under RCRA altogether by not defining them as solid waste. This is one possible outcome of EPA's upcoming rule for the management of used cathode ray tubes (CRTs) from television sets and computer monitors. CRTs can contain high levels of lead and fail the hazardous-waste toxicity test but are often disposed in MSW landfills or incinerators. EPA recognizes that collectors, transporters, and processors will be less burdened by streamlined management requirements and thereby encourage CRT recycling.
To prevent violations of Title VI of the Civil Rights Act of 1964 by EPA regional offices and state and local government permitting agencies receiving federal funds, EPA issued an environmental justice guidance in 1998. The guidance requires them, with little flexibility, to avoid imposing or to mitigate a disparate adverse impact on poor or minority communities resulting from permitting decisions for a new or existing pollutant-emitting facility. The guidance is undergoing revision. In particular, an advisory committee is to recommend to EPA how to ensure that MSW transfer station siting and operation decisions by states and local governments do not disproportionately impact minorities and poor communities. A key concern is the clustering of transfer stations and associated air pollution, noise and traffic impacts primarily from diesel-fueled MSW collection trucks.
Under CAA, EPA must establish by November 2000 maximum achievable control technology (MACT) standards for controlling hazardous air pollutants (HAPs) from MSW landfills that emit 10 or more tons a year of a single HAP or 25 or more tons a year of a combination of HAPs. Landfills that are not "major sources" of HAPs, called area sources, are also to be regulated. EPA has identified emissions of about 30 HAPs from the decomposition of waste. EPA is to gather significant data to calculate the level of emissions before it can determine the required level of control and promulgate a final MACT. In the absence of such data, EPA is prepared to use default LFG constituent values derived from its AP-42 database. The solid waste industry believes that the AP-42 default emission rates are too high and could result in landfills erroneously reaching the threshold requiring installation of MACT. Because of this concern, the industry is currently urging EPA to make improvements to AP-42 through a cooperative agency–industry effort to obtain more field and lab data and to verify emission models.
Three rulemakings dealing with wetlands are relevant to the MSW management industry. The first is a pending final draft of proposed changes to the Nationwide General Permit Program, which allows specific types of activities to be taken in wetlands without the need to obtain an individual wetlands permit if the activity is covered by one or more of several dozen nationwide permits (NWP). The draft proposal would replace NWP 26, which has been used by the solid waste industry for activities and waste management facilities affecting wetlands, and increases the consideration of site-specific conditions and impacts before use of an NWP is allowed, sets acreage limits, and requires preconstruction notification in most cases delineating how adverse impacts will be mitigated. The second rulemaking is prompted by a court decision that struck down a rule that gave the corps jurisdiction to regulate isolated wetlands even if it was not connected to navigable waters or did not affect interstate commerce (US v. Wilson). The corps, in response to the court decision, issued guidance for use by the five states covered by the decision that established various tests to link a wetland to interstate commerce (e.g., the wetland is used for recreation by interstate travelers). The corps has said that it would not follow the court's decision in other states and intends to propose regulations consistent with the guidance that it would apply nationwide. The third rule would establish an administrative appeals process to allow review of a corps decision that a particular activity within a wetland is subject to its regulation. Last March, in response to a congressional directive, the corps issued a final rule establishing an administrative appeals process for applicants who have been denied a wetlands permit. However, that same directive required establishment of an appeals process to review jurisdictional decisions by the corps. Congress recently provided the agency the necessary funds to develop this second appeals process.
A proposed ergonomics standard to protect workers from work-related musculoskeletal disorders (WMSDs), focusing on manual handling operations, is to be released by OSHA before the end of the year. Last February, OSHA released a working draft of the standard, which required an employer to establish a six-part ergonomics program: management leadership in promoting a cooperative environment with employees to address WMSDs; hazard identification and information; job-hazard analysis, prevention, and control; employee education and training; medical management; and regular program evaluation. Under the draft standard, a WMSD is an injury recordable on OSHA 200 logs that would reasonably occur from the identified hazard in the workplace and that happens to an employee whose regular job involves a significant exposure to the hazard.
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