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MUNICIPAL SOLID WASTE AT LEAKING LANDFILLS -
THE DILEMMA CONTINUES

By Karl E. Miller and John L. Tatum

Another bruising battle appears likely in Congress over re-authorization and revision of Superfund(1). Among the issues sure to be debated is the effect of municipal solid waste (MSW) discarded at Superfund sites. The issues include toxicity, fate and transport, volume, and an appropriate share of the financial responsibility for clean up costs. The municipalities and their supporters, while conceding that some hazardous substances may be present in municipal solid waste streams, argue that the Superfund process is unfair and might lead to financial and political stress for municipalities and their citizenry. PRP groups struggling to fund expensive remedies argue that the cost of site cleanup is directly affected by high-volume municipal wastes. While the public policy debate continues in Washington and various state capitols, the federal courts are quietly "carving out" a municipal exemption of their own in terms of an extraordinarily detailed summary judgment standard of proof which has far reaching implications.

However, there are a number of issues which are not clearly understood and, thus, have not been raised in the public debate. Congress and various state legislatures -- including Michigan -- should proceed cautiously before granting outright either total or partial exemptions to municipal liability or placing these liabilities in the so called "orphan share." These issues may be resolved during and after the application of a disciplined and reasoned site specific fact-finding and allocation process. Public policy and equitable considerations, as well as the strengths and weaknesses which all sides bring to the table, must be part of the process, which is illustrated in the accompanying hypothetical allocation, which uses existing and proposed legislation. A number of points need to be made as the discussion progresses to reasons for continuing to involve municipalities in the Superfund process as well as methodologies for equitably handling municipal allocation. These include:

1)Municipal waste is composed of much more than non-hazardous "household" waste.

The following table compares the relative volumes and composition of the RCRA Subtitle C "Hazardous Waste" and the Subtitle D "Non-Hazardous Waste" which may be accepted in Subtitle D landfills, including municipal solid waste landfills (MSWLF):

WASTE TYPE TAXONOMY

Category

Description / Definition

Muni

Subtitle C HAZARDOUS WASTE(2) (Type 1 Landfill) Total Volume(Tons inMillions)

1.2

100%

Listed

P & U (Commercial chemicals), F & K (Specific and non-specific source)

NO

Characteristic

D (Flammable, ignitable, corrosive, TCLP, etc )

NO

SmlQuantGen

> 100 kg / mo and/ or > 1 kg / mo acute

NO

Subtitle D WASTE (Type 2 Landfill)

Tons in Millions

Pct%

Muni

CondExempt SQG

<100 kg / mo & < 1 kg / mo acute

>1

>1%

OK

Industrial(3)

Process - Non RCRA (SIC 20 - 39 ) Manufacturing (ISW)

29

11%

OK

Commercial

Construction/Demolition (CDD)

23

9%

Municipal Solid Waste (MSW)(4)

Tons

Pct%

Industrial (SIC 20-39)

Industrial Non-Process & Industrial Office

32

15%

12%

OK

Commercial(5)

SIC not 20-39, Retail, Restaurants, Service Ind

62

30%

24%

OK

Institutional(6)

Hospital (Less Medical segregated), Schools (& Prisons

113

55%

43%

OK

Household(7)

Residential

Hotel / Motel & Appts / Condo /camps AND

Indiv Family, Curbside

Total MSW (Tons in Millions)

207

100%

Total Municipal Landfill Volume (Tons in Millions)

259

100%

As can be seen, the actual distribution of waste types/sources in a MSWLF is markedly different than the public perception. Only about 50 percent is "household", the rest is the "dumpster" box, the compactor and the roll off box. It has been our experience that the older landfills have a higher percentage of non-residential waste, but the rubric of the "sanitary" or municipal landfill has been used quite successfully to mask the industrial and commercial waste streams from the debate. For example, a waste distribution from a site in use in the seventies might be 30 to 40 percent residential as opposed to today's 50-plus percent residential.

2)Leachate is not significantly different between urban (industrial) and rural (mixed waste) landfills. A 1983 report by the Minnesota Pollution Control Agency containing data indicating that "... rural landfills, which contain only household waste, therefore pose contamination problems identical to the urban landfills, which contain both household and industrial (supposedly) hazardous) waste."

3)Almost all municipal solid waste landfills leak and a substantial percentage of the sites on the NPL involve landfills owned or operated by municipalities or in which municipalities are involved as generators and transporters. In 1992, EPA estimated that municipal landfills (those owned by municipalities or which accepted municipal waste) constituted 20 percent of the sites on the NPL and that municipalities were otherwise "involved" as generators, transporters or arrangers at 25 percent of the NPL sites.(8) Commentary to the CESQG rule(9) cited studies showing that of 163 MSWLF's studied, 146 (or 90 percent) had groundwater contamination and 73 (or 45 percent) had surface water contamination. One analysis suggests that the EPA estimates are on the low side and that the percentage of sites involving municipalities as owners/operators or PRPs may actually be in excess of 33%(10).

4)All of the components of municipal solid waste contain hazardous substances. A number of studies, principally The Garbage Project at the University of Arizona (Rathje, et al), have demonstrated that the residential portion of the municipal solid waste stream contains approximately 0.5% or more hazardous substances. The commercial and industrial parts of the MSW stream contain all the packaging for raw materials, waste oils, waste maintenance products and the residues from all the products for which Material Safety Data Sheets are required. The hazardous percentage for the above categories should at least equal the household 0.5% and is probably much more. The impact of this seemingly small percentage of hazardous material in MSW is compounded because the volume of MSW at most landfills is a large part of the total.

5)Although courts and agencies which have interpreted CERCLA have held that municipalities and municipal wastes are subject to its liability scheme, they have been very protective in establishing standards applicable to municipal waste in third party contribution/cost recovery actions and to the joinder of municipalities in those actions. The federal district courts in Murtha and Dana, have applied extraordinary standards of proof to joinder of municipalities and commercial/industrial contributors to the municipal solid waste stream. Murtha required proof of actual disposal of specific products by name and as seen in the trash by the deponent. Dana required not only specific recall of hazardous materials in the trash, but continuous, regular streams of said materials on their way to the site. Both standards were applied at summary judgement, without benefit of evidentiary presentation and evaluation by the finder of fact. By contrast, the Atlas court heard 50 days of evidence and reached a different conclusion.

The EPA, the Department Of Justice, state agencies and state attorneys general have made notification and joinder of municipalities an issue of rarely exercised prosecutorial discretion. EPA's December 1989 OSWER Directive 9834.13, known also as " Interim Policy of CERCLA Settlements Involving Municipalities or Municipal Wastes" (hereinafter the "Guidance")(11) clearly requires EPA to notify and handle municipal owner/operators of sites in the same manner as private parties. However, with respect to municipalities as generators / transporters "... such parties will not generally be notified unless: the Region obtains site-specific information that the MSW contains a hazardous substance; and the Region has reason to believe that the hazardous substance is derived from a commercial, institutional, or industrial process or activity".(12) The impact of this policy is illustrated by data published in 1992 which identified at least 260 sites where local governments were known to be involved as owner/operators or as generators/transporters/arrangers, but were not notified by EPA.(13)

Despite the evidence, municipalities continue to argue that their waste is not hazardous, or in the alternative, that the remedies are so expensive that they court municipal bankruptcy and taxpayer rebellion and that their liability should be limited as a matter of "public policy." Responding to these arguments, the national and state legislatures have begun to search for other ways to address the municipal share. Outright exemption, limits, credits, waivers and the orphan share are all potential solutions explored in various legislative proposals.

In this term of Congress, the proposed solutions include repeal of joint and several liability, either for the benefit of municipal landfills only or for all parties during certain arbitrarily chosen periods over the past twenty years. Senate Bill S1285 utilizes the "half-off" concept by requiring that the percentage of site responsibility attributable to a PRP which is a political subdivision of a state be allocated 50% to that party and 50% to the orphan share. Separate allocations are also to be made for activities at a site which are prior to and after December 11, 1980.

The philosophy "We have met the enemy and he is not us" appears to be guiding the search to make "the polluter pay". In reality the issues raised in all of the preceeding analysis should suggest that the quotation in its original form is more accurate: "We have met the enemy and he is us(14)".

All who contribute to the municipal waste stream, (residential, commercial and industrial) share responsibility. The challenge is to respond accordingly.

Assignment of orphan share status to municipal waste seems inappropriate, expensive, and inequitable given the volume of MSW at the typical site. The "true" orphan share, as defined by Judge Enslen in the Western District of Michigan(15) is the share attributable to those parties identified as having sent hazardous substances to the site who are insolvent, defunct and unavailable for joinder in the action. The orphan share is not those parties which for one reason or another have not been joined in the action.

Recommendations. It has been the experience of the authors that there is usually a factual basis for allocating the liability at a municipal solid waste landfill to the various parties who contributed to it. This factual basis is never perfect, but given authority to make reasonable extrapolations from the available evidence, a volumetric assessment of the site can usually be made. It is this volumetric assessment that forms the basis for most site settlements.

The key, as noted by the Gloucester Court, is an equitable allocation. In our experience, this means, in addition to the "Gore" factors(16) regularly identified as a basis for allocation, an assessment that proportionately relates remedial costs by category to the source or sources of the substances causing the problem. A typical example is the cost of capping a municipal solid waste landfill versus the costs of constructing a treatment system for a specific hazardous chemical attributed to a specific source. Those who contribute volume to a landfill increase the cost to cap, not necessarily the cost to treat.

Some of the proposals before Congress would segregate the commercial and industrial portions of the municipal waste stream from the residential waste streams by means of a very narrow definition of municipal waste which then is to be discounted, exempted or given a credit. When this can be accomplished, it has the effect of significantly reducing the "strictly" municipal (household) share, and thus, the accompanying political discomfort. However, reducing the household share yields an increase in the orphan or other share.

While municipalities and other similarity situated parties often have little option to provide cash, they can provide services and supplies to meet their share. Equipment, project management, waste water treatment operators, sources of clay, labor for landscape planting and land use regulation are all areas in which governments can meet their contribution requirement. There are many other intangible benefits to having a municipality as part of the cleanup team. Municipalities are also valuable allies in developing and implementing institutional remedies.

While the adjoining example is hypothetical, it illustrates the equities that can be accomplished when fact finders or allocators are granted the flexibility to consider all the possibilities. The example municipality was able to leverage already existing resources and to barter them so that it could accept it's responsibility for a significant share without raising taxes or depleting the municipal coffers.

If the municipality were not participating either voluntarily or after joinder, or if its share were arbitrarily set, this equitable result would not have been achieved. For example, under the 10% solution, the public and/or other PRPs would have been responsible for at least an additional $2.4 million in allocated share. The PRPs would have been deprived of the services the municipality could otherwise have provided and would have had to replace them at higher cost. Either bill currently before Congress would impose a $1.4 million burden on other parties. The PRP Group or the taxpayers would shoulder a much larger share.

Incorporating an allocation strategy into the process has potential to significantly reduce both transaction costs and the remediation cycle at leaking landfills. These are desirable societal goals. The following suggestions for statutory or regulatory modifications offer real potential for providing quick settlements:

  1. fund a "true" orphan share,
  2. require governmental units to participate in the allocation as a precondition to access to the orphan share,
  3. require the consideration of additional allocation factors, including ,
    • ability to pay or contribute,
    • reasonable extrapolations for waste types, volumes and destinations,
    • remedy component valuation versus the waste types disposed,
  4. specific evaluation of household trash volume and communities responsible,
  5. specific evaluation of commercial trash volume and commercial disposers, and
  6. specific evaluation of industrial trash volume and industrial trash disposers.

The EPA's alternate dispute resolution pilot project under way includes many of these components, as did the Michigan allocation process under the former Act 307. A combination of the above may succeed without the need for arbitrary, calendar-based exclusions, percentage caps, half-off discounts or other special interest waivers.

Superfund, while solving real problems, imposes liability in what is often thought to be an unfair way. The problem is truly that "the enemy really is all of us." Bringing all of the parties to the negotiating table to solve a real cleanup problem is the fair way to allocate cleanup costs.


1. CERCLA

2. "For purposes of this section, regulated hazardous waste means a solid waste that is a hazardous waste, as defined in 40 CFR 261.3 that is not excluded from regulation as a hazardous waste under 40 CFR 261.4(b) or was not generated by a conditionally exempt small quantity generator as defined in 261.5 of this chapter." 40 CFR 258.20(b) .

3. "Industrial solid waste means solid waste generated by manufacturing or industrial processes that is not a hazardous waste regulated under subtitle C of RCRA. Such waste may include, but is not limited to, waste resulting from the following manufacturing processes: electric power generation [SIC 49]; fertilizer/agricultural chemicals [SIC 28]; food and related products/by-products [SIC 20]; inorganic chemicals [SIC 28]; iron and steel manufacturing [SIC 38]; leather and leather products [SIC 33]; nonferrous metals manufacturing/foundries [SIC 33]; organic chemicals; plastics and resins manufacturing [SIC 28]; pulp and paper industry [SIC 26]; rubber and miscellaneous plastic products [SIC 30]; stone, glass, clay, and concrete products [SIC 32]; textile manufacturing [SIC 22]; transportation equipment [SIC 37]; and water treatment. This term does not include mining waste or oil and gas waste." 40 CFR 258.2 (1992).

4. Characterization of Municipal Solid Waste in the United States: 1994 Update, USEPA OSWER, (1994) at 5. Percentages and ratios for the ISW, CDD and the Industrial / Commercial breakdown were thaken from the May 1555 "Demonstration of Available Capacity for the Solid Waste Management Plan for Oakland County , Michigan" which was approved by the Board of Commissioners on May 11, 1995.

5. "Commercial solid wastemeans all types of solid waste generated by stores, offices, restaurants, warehouses, and other non-manufacturing activities, excluding residential and industrial wastes." 40 CFR 258.2 (1992). 40 CFR 245.101 adds "non-processing waste generated at industrial facilities such as office and packing wastes" to the list.

6. "Institutional solid waste means solid waste originating from educational, health care, correctional and other institutional facilities. 40 CFR 245.101

7. "Household waste means any solid waste (including garbage, trash, and sanitary waste in septic tanks) derived from households (including single and multiple residences, hotels and motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds, and day-use recreation areas)." 40 CFR 258.2.

8. Main Street Meets Superfund: Local Government Involvement At Superfund Hazardous Waste Sites, Clean Sites, Inc., January 1992 at 5.

9. USEPA, Background Document for the CESQG Rule, EPA/530-R-95-021, NTIS: PB95-208 930, May 1995 at 12.

10. Clean Sites, supre at 5.

11. 54 F.R. 51071, Dec. 12, 1989.

12. Guidance IV[B][1]

13. Id. at 11.

14. Walt Kelly, Pogo.

15. Charter Township of Oshtemo, et. al. v. American Cyanimid, et. al, No 1:92:CV:843 (W.D. Mich. May 9, 1995).

16. Ability of a party to distinguish their contribution to a release from that of others, amount of hazardous waste contributed, degree of toxicity of waste contributed, degree of involvement with the generation, transportation or management of waste, degree of care exercised with respect to the hazard and degree of cooperation with authorities to prevent environmental harm.

 

 

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