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#232 - Public Ownership Of Dumps Is The Key, 07-May-1991

What does it take--really--to make a good landfill?

U.S. Environmental Protection Agency (EPA) proposed new regulations for
municipal solid waste landfills back in August, 1988 (see RHWN #231).
Soon the Agency will publish final regulations, which are likely to
draw heavily on the earlier proposals. Many generations of Americans
will be affected by these regulations because we presently bury about
134 million tons of municipal solid waste (msw) in the ground each
year. Although these wastes are legally "non-hazardous," the estimated
90 billion gallons of leachate that drip into the ground (and the
groundwater) beneath msw landfills each year are definitely
carcinogenic and toxic (see RHWN #90).

The new regulations will not make msw landfills any safer. They may,
however, delay the release of toxic leachate into the groundwater below
landfills. In proposing new msw landfill regulations, EPA says right up
front that all landfills will eventually leak, and then proceeds to
describe the real meat of the proposed regulations, which is a
"corrective action" program to clean up each leaking mess after it has
begun leaking.[1] Obviously, this is an exceedingly costly approach to
the problem of managing msw--intentionally creating problems you know
you'll later pay to try to solve. In truth, it is a consultants' dream
because it will require many billions of dollars for "remediation
specialists" to try to clean up today's messes tomorrow. (A question
occurs: Are the people writing these regulations hoping to create jobs
for themselves as cleanup consultants?)

As we saw last week, the EPA readily admits that all landfills leak and
that all landfills will, therefore, sooner or later, require a
"corrective action" program to clean them up. The Agency knows it will
happen because it has happened before and often. EPA says, "EPA has
evidence that ground water has been contaminated by MSWLFs [municipal
solid waste landfills] on a local basis in many parts of the nation and
on a regional basis in some heavily populated and industrialized areas.
Evaluation of 163 MSWLF case studies has indicated ground-water
contamination or adverse trends in ground-water quality at 146 of
them." (pg. 33366) That's a 90% contamination rate for groundwater
beneath municipal solid waste land fills.

EPA also knows, from theoretical considerations, that all landfills
will one day require "corrective action:" "First, even the best liner
and leachate collection systems will ultimately fail due to natural
deterioration, and recent improvements in [msw] containment
technologies suggest that releases may be delayed by many decades at
some landfills. For this reason the Agency is concerned that while
corrective action may have already been triggered at many facilities,
30 years may be insufficient to detect releases at other landfills. The
Agency, therefore, wants to ensure that any potential release will be
detected regardless of when it occurs." (pg. 33345) To this end, as we
saw last week, the agency expects the landfill cover (its "cap") to be
replaced periodically and the monitoring wells to be replaced
periodically. The monitoring wells are really critical: "Even the best
designs, operating practices, and quality control procedures cannot
always prevent unexpected failure of a landfill. Therefore, ground-
water monitoring at all facilities, including those that are properly
designed and operated, is viewed by the Agency as an essential measure
to insure protection of human health and the environment," EPA says.
(pg. 33366)

The strategy of the new regulations is to ensure that when the
inevitable leakage begins, regulatory officials will be alerted so they
can ask the owner/operator to begin "corrective action" which usually
means pumping groundwater to the surface, treating it to remove
contaminants (which will then be buried in another landfill somewhere),
returning the cleaned water to the subsurface. The regulations never
address the fundamental problem, now widely acknowledged among the
world's community of geologists and hydrologists, which is that
contaminated groundwater is exceedingly difficult--often impossible--to
clean up, once it is contaminated. (See RHWN #163.) Really, the only
way to guarantee clean groundwater is to never contaminate it in the
first place.

What makes this EPA shell game so tawdry and pathetic is that real
solutions are readily available, solutions that do not ask us to make
the preposterous assumption that a dedicated priesthood of garbage
persons will, in perpetuity, be replacing the plastic caps and the
monitoring wells at today's landfills. We could prevent landfills from
contaminating groundwater by simply changing the rules about ownership
of landfills. We should prohibit the private ownership of dumps.

The issue of private vs. public ownership of dumps is key. If a dump is
privately owned, the owner has a strong incentive (money) to take as
much garbage as possible through the front gate because every ton earns
a "tipping fee" which is the landfill owner's bread and butter. Private
owners want to fill the dump as fast as possible (get the most money
into the bank as quickly as possible) and they have little or no
interest in monitoring what comes through the front gate. Very likely,
they will go bankrupt, or will skip town, before any serious pollution
occurs, so they don't care if the garbage is filled with toxics or is
clean as a whistle. It's literally not their problem. They have no real
incentive to care. Landfill owners typically live somewhere else--and
as more big companies take over dumps, it becomes ever more true that
dump owners live far from the dumps they own.

It is private owners of dumps who sue in court to prevent states from
closing their borders to out-of-state garbage. They sue under the
interstate commerce clause of the U.S. Constitution, and often they win
the right to force a locality to take garbage from far away. This is
another serious problem of private ownership.

On the other hand, when a dump is owned by a public agency (a county,
or town, government, for example), the incentives are entirely
different. The empty dump is a local asset. The government wants to
make it last as long as possible, so there is an incentive to restrict
what can come in the gate. The interstate commerce clause is not an
issue because local governments have the right to restrict who can dump
what at the local landfill. No local government in its right mind would
want to take garbage from another state or county. (There are a few
towns on record favoring huge imports of trash into their community,
but these are places where local officials have been seduced by a
garbage company and are now eager to turn garbage tricks for their
entire region. Such instances of municipal prostitution are rare.)

To minimize dangers from dumping, local governments can restrict what
comes in the gate. They can, for example, refuse to take mixed wastes--
only separated wastes can come in. Further, they can order that nothing
recyclable can be buried in the ground, and nothing compostable.
Naturally, they could refuse to take anything remotely toxic or
dangerous. They could even refuse to take reusable items, like old
stoves, directing them instead to Goodwill, or to some other fix-it

Because the leachate from dumps is a demonstrable hazard to local water
supplies, local governments can control what goes into their landfill
in the name of public health and safety--and these are powers of
government derived directly from the Constitution. It would therefore
seem to be a valid exercise of a local government's police power if the
local government were to pass an ordinance outlawing private ownership
of landfills. Outlawing privately-owned new landfills will be much
easier than outlawing private ownership of existing landfills because
the present owners would fight in court for their God-given right to
poison the environment for profit.

--Peter Montague


[1] U.S. Environmental Protection Agency, "Solid Waste Disposal
Facility Criteria," FEDERAL REGISTER, Vol. 53, No. 166 (aug. 30, 1988),
pgs. 33314-33422."

For ideas on landfill controls, I am indebted to Paul Connett of Work
on Waste USA [82 Judson St., Canton, NY 13617; (315) 379-9200--if
you're not reading their weekly news bulletin, WASTE NOT, you should
be, and to attorney Mark Lohbauer of the Philadelphia firm, Leather &
Lohbauer [(215) 423-5000].

Descriptor terms: landfilling; public participation; msw; regulations;
epa; leachate; groundwater contamination; remedial action; accidents;
monitoring; compliance; private ownership; policies;