Tag Archives: Waste Disposal

Another Solid Waste Issue

July 2, 2013: The Senate Agriculture and Environment Committee took up a noncontroversial House bill concerning local solid waste planning (House Bill 321).  Before approving the bill, senators amended it by adding a section that chooses sides in a specific legal dispute between a landfill operator and a local government. Sen. Fletcher Hartsell described the amendment as “grandfathering” a construction and demolition debris landfill in Union County that lost its local franchise agreement.  There appears to be a bit more to the situation, including several years of litigation between the  landfill operator and the local government where the landfill is located.

First, a little background on the landfill franchise requirement. Since 1994, N.C. law has required the operator of a solid waste landfill that receives household waste or construction/demolition waste to have a franchise from the local government. The franchise approach assumes that a privately-run landfill still exists largely  to provide waste disposal services for  a city or county. The franchise also allows the local government hosting a privately-run  landfill greater influence on its operation and management.

Based on  the brief description in committee (and a quick Google search), the amendment to House Bill 321 seems to involve a dispute between the Town of Unionville and Griffin Farm & Landfill, Inc. that has been going on since 2009.  In 2004, Griffin Farm & Landfill, Inc. received a franchise from the Town of Unionville for a construction and demolition debris (C&D) landfill. On June 30, 2008, Griffin Farm stopped accepting waste at the C&D landfill rather than meet new state landfill standards. Both the franchise and the 5-year state permit for the C&D landfill were set to expire on February 9, 2009 and in December 2008 Griffin Farm applied to the Town of Unionville for a new franchise. The Town of Unionville denied the franchise application in April of 2009, citing Griffin Farm’s neglect of the landfill, refusal to comply with new landfill standards, and past history of state violations. Several years of litigation between Unionville and Griffin Farm followed. Griffin Farm filed suit in federal court, claiming a constitutional right to continue operating the C&D landfill. The U.S District Court for the Western District of N.C. issued a decision in August of 2012 in favor of the Town of Unionville. [Note: The background facts largely come from the August 8, 2012  federal district court  decision in Griffin Farm & Landfill, Inc. & Richard S. Griffin v. Town of Unionville.]

If the General Assembly approves House Bill 321 as amended, Griffin Farm & Landfill, Inc. will be allowed to apply for a new state permit for the C&D landfill without a local government franchise. Since state law otherwise requires a franchise for operation of a C&D landfill, Griffin Farm & Landfill, Inc.  would presumably  become the only solid waste landfill in the state without a local government franchise.  Disconnecting the solid waste landfill permit from a local franchise should not be done without considering the implications for other landfill operators, local governments and state waste management policy.  At the very least, the General Assembly needs to be aware that it is both setting a precedent and intervening in a longstanding legal dispute.

Note: Like much of the state’s solid waste law, the franchise statute treats waste disposal primarily as a service to citizens rather than a commercial activity in its own right. State solid waste laws also  set goals for waste reduction and increased recycling.  The tension between treating landfills as a necessary service versus a moneymaking commercial activity also  provides much of the back story behind Senate Bill 328 (Solid Waste Management Reform Act of 2013).  In that case, the push to change the 2007 landfill standards largely comes from private waste management companies interested in a business opportunity beyond simply serving N.C. waste disposal needs. That business case is supported by a U.S. Supreme Court decision holding that movement of trash from one state to another for disposal is interstate commerce, so no state can just prohibit shipment of  waste either into or out of the state. (The U.S. Supreme Court has upheld state and local regulations  that  support legitimate  public purposes — such as environmental protection or recycling — even if the regulations affect  movement of trash across state lines.)

Landfill Update

June 20, 2013:  Yesterday, the Senate Finance Committee approved a revised version of Senate Bill 328 (the Solid Waste Management Reform Act of 2013). The new bill draft undoes some of the changes to existing solid waste laws proposed in earlier versions of the bill. The bill:

— Reinstates the requirement for an Environmental Impact Statement (EIS) for landfills.

— Adds a modified requirement for inspection and cleaning  of leachate lines  (requiring inspection every five-years and cleaning as needed in place of the current requirement for annual cleaning).

— Removes earlier bill language that would have allowed waste disposal in wetlands that are not  protected under federal law; the bill still eliminates the current  200 foot buffer between waste disposal areas and wetlands.

— Returns to existing limits on landfill size, removing language that would have increased the maximum landfill height from 250 to 300 feet.

Unfortunately, the new version of Senate Bill 328 provides even less protection for endangered species habitat and other sensitive areas than the previous bill draft.  The new version still repeals language in the solid waste laws that allows DENR to deny a landfill permit based on significant damage to:

“ecological systems, natural resources, cultural sites, recreation areas, or historic sites of more than local significance…[including] national or State parks or forests; wilderness areas; historic sites; recreation areas; segments of the natural and scenic rivers system; wildlife refuges, preserves, and management areas; areas that provide habitat for threatened or endangered species; primary nursery areas and critical fisheries habitat designated by the Marine Fisheries Commission; and Outstanding Resource Waters designated by the Environmental Management Commission.”

But the  bill also drops earlier Senate Bill 328 language that would have prevented landfills from being located in critical habitat for a threatened or endangered species or in a historically or archaeologically sensitive site.  The only protection for important natural resources appears in one provision that requires a 1500 foot setback between a landfill and  a national or State park, a designated Natural and Scenic River, a  National Wildlife Refuge, critical fisheries habitat or Outstanding Resource Waters.

Without any permitting standard that protects sensitive areas,  information from an  EIS that shows construction or operation of the landfill will significantly damage a  park, wildlife refuge, endangered species habitat, historic or archaeological site will just be interesting reading. The bill will leave DENR with little or no ability to actually use that information to deny a permit or to put conditions on the permit to protect conservation areas, public recreation areas, endangered species habitat and other sensitive resources.

Weakening Environmental Standards for Landfills

June 8, 2013:  On Thursday, the Senate’s Agriculture and Environment Committee approved a radically rewritten version of  Senate Bill 328 (Solid Waste Management Reform of 2013) in very short order.  The bill undoes  a number of environmental standards adopted in a  2007 rewrite of the state’s landfill permitting laws, weakening protections for  parks, wildlife refuges, wetlands,  endangered species habitat and sensitive or high quality surface waters. It also changes some longstanding environmental standards for landfill operation that predate the 2007 law.

A little history first. In 2006, the Department of Environment and Natural Resources (DENR) received  several  permit applications from private waste management companies proposing construction  of  new and  very large landfills in the coastal area of the state.  Reacting to the controversy over those landfill proposals, the N.C. General Assembly put a one-year moratorium on landfill permitting to allow time for a study of permitting standards.   After the study, the General Assembly adopted a major piece of legislation,  Session Law 2007-550, that set new landfill permitting standards, including setbacks from wildlife refuges, parks and gamelands;  increased   bonding requirements for landfill operators; and  stronger standards for leak prevention and detection. The bill also, for the first time, created a state solid waste disposal tax and dedicated the tax revenues to recycling programs and cleanup of contamination from old,  unlined landfills.

Waste management companies fought the solid waste disposal tax and opposed some of the new environmental standards.  A  Raleigh-based company, Waste Industries, U.S.A.,  sued to challenge the final law. (Some of the new landfill standards affected plans for a large Waste Industries landfill  near Dismal Swamp State Park and Dismal Swamp National Wildlife Refuge in Camden County.)   In 2012, the North Carolina Court of Appeals ruled against Waste Industries and upheld the law. Senate Bill 328  appears to be a new  effort by landfill developers and operators to legislatively undo many of the standards adopted in 2007 and change some  requirements that were in place long before  2007.

Senate Bill 328 changes specific to landfill design, construction and operation are described in more detail below.  Among the most important  would be repeal of several standards for denial of a landfill permit. The Department of Environment and Natural Resources (DENR) would no longer be able to deny a  permit because construction or operation of the landfill would cause significant damage to parks, wilderness areas, habitat for threatened and endangered species, critical fisheries habitat or other natural and historic areas of regional and statewide significance. (See Sec. 2). Instead,  a permit could be denied only if  the landfill would  be located in critical habitat for threatened or endangered species; in a historically or archaeologically sensitive site of more than local significance; or within 1500 feet of a national or state park, forest, wilderness area, recreation area, a segment of the Natural and Scenic Rivers system, a  National Wildlife Refuge, a wildlife preserve or management area, critical fisheries habitat, or other high quality waters. (See Section 3 of the bill).

The changes mean that DENR could  only consider location of the landfill itself and not impacts from construction and operation in making a permit decision. Removing those grounds for permit denial will also make it difficult for DENR to put conditions on construction and operation of the landfill to protect those natural resources.  As a result, the bill would leave some very sensitive   resources  vulnerable to damage from landfill construction and operation. With respect to habitat for threatened and endangered species,   failure to consider damage from construction and operation may make the bill inconsistent with requirements of the federal Endangered Species Act.

The bill also:

—  Repeals the requirement for  an environmental impact statement (EIS) for  new landfills.  (Section 3).   Repeal of this language would remove the EIS requirement in the solid waste statutes, but does not exempt local government landfill projects from the  State Environmental Policy Act (SEPA).  SEPA requires an EIS for any state-permitted project that  involves expenditure of public funds or use of public lands and may have a significant impact on the environment.  The odd result could be  an EIS for public projects, but not for commercial landfill projects that may be as large or larger.

— Eliminates the requirement for any buffer between a waste disposal unit (the actual landfill cell where solid waste is deposited) and wetlands.   The change could allow  waste disposal immediately adjacent to wetlands that are directly connected to surface waters.  (Section 3)

— Reduces the buffer required between landfills and national wildlife refuges, state parks, and gamelands managed by the N.C. Wildlife Resources Commission to 1500 feet. (Section 3).  The 2007 law required a buffer of five  miles from a National Wildlife Refuge, two miles from a state park, and one mile from state gamelands. Those buffer requirements reflected the recommendations of parks and wildlife officials,  but waste management companies saw the 2007 buffers as a legislative  attempt to kill specific landfill projects.

— Allows construction of a landfill in wetlands that fall outside federal Clean Water Act jurisdiction. (Section 3). Many court cases and law review articles have tried to clarify the line between federal and state wetland jurisdiction, but one possible result of the bill would be to allow  landfill construction in “isolated” wetlands  that  may not have a direct connection to surface waters,  but have a connection to groundwater.

— Eliminates the requirement for regular cleaning of leachate collection lines.  (Section 3).

— Raises the maximum landfill height from 250 feet to 300 feet, but creates additional closure and vegetative cover requirements for landfills of greater than 100 feet in height.  (Section 3).

—  Limits the landfill operator’s responsibility to assess  a release of landfill leachate  and take corrective action unless  leachate reaches the compliance boundary. (Section  5).   Leachate is water that  percolates through the  landfill, picking up contaminants from the waste material. Permits for waste disposal sites often allow  groundwater standards to be exceeded immediately  under a waste  disposal site as long as the groundwater meets all standards at a designated compliance boundary. For  landfills  permitted since 1983, the compliance boundary is generally 250 feet from the waste disposal site or 50 feet inside the property line (whichever is closer).  Corrective action requirements for landfills have been in place for many years and  always required the landfill operator to take steps to stop an ongoing leak or spill. The Senate Bill 328 language is so broad that it could be interpreted to excuse the operator from doing even that unless leachate actually reaches the compliance boundary. Excusing a landfill operator from corrective action to stop an ongoing  release of leachate  under any circumstances would likely be inconsistent with federal solid waste rules.

— Eliminates a requirement that vehicles carrying solid waste must be leak proof and instead requires only that  vehicles be “designed to be leak resistant”, changing a standard for transport of solid waste that has been in place for 25 years. (Section 7).

— Removes the minimum financial assurance requirement. Senate Bill 328 would still require financial assurance to cover closure of the landfill as well as assessment and cleanup of any spills or leak, but  removes the statutory floor of $2 million and gives DENR complete discretion to set the amount of the financial assurance.

One  part of the bill has impacts beyond landfill construction and operation. Section 6   would prevent  the Environmental Management Commission from reviewing state groundwater standards more often than every five years. Groundwater standards guide permitting of many  activities  that present a risk of groundwater contamination and provide the benchmark for  groundwater remediation.  Slowing the revision of groundwater standards may have unintended consequences for industry generally, since new research on health impacts sometimes provides support for a less stringent groundwater standard.

The bill makes other changes, but I will stop there. Senate Bill 328 will be on the Senate calendar for June 11.

Regulatory Reform 3.0

April 29, 2013:  Last Thursday, the N.C. Senate’s Committee on Commerce approved a new version of Senate Bill 612 (Regulatory Reform Act of 2013) — the third in a series of “regulatory reform” bills developed since Republicans gained control of both houses of the General Assembly in the 2011. The bill may be on the Senate calendar tonight.

The bill attempts too  much  to describe in one post, but  the  most significant provisions would  repeal stream buffer requirements in the Neuse River and Tar-Pamlico River basins  and  require  repeal or modification of any state rule  that “imposes a more restrictive standard, limitation, or requirement” than a federal law or rule on the same subject. ( See an earlier post  for more detail on the  Senate Bill 612 stream buffer language.) The idea of prohibiting  state agencies from adopting rules (particularly environmental rules) that  go beyond minimum  federal requirements has been around for awhile. The Regulatory Reform Act of 2011     ( Session Law 2011-398 )  prohibited  state environmental  agencies — and only environmental agencies — from adopting  more restrictive standards or requirements  than federal rules on the same subject.   The  law had exceptions  for  rules to address a “serious and unforeseen threat to public health, safety or welfare” and rules required by state law, federal law, state budget policy or a court order.  Even then, the General Assembly had an eye on existing rules as well. The same legislation directed all state agencies to provide the Joint Select Regulatory Reform Committee with a list of existing rules and indicate for each rule whether the rule was mandated by federal law and whether the  rule was more stringent than an analogous federal regulation. (The session law defined analogous to mean that a federal rule regulated the same conduct or activity.)

The Regulatory Reform Act of 2012 (Session Law 2012-187)    did  not follow up on the reports  submitted in the fall of 2011.  Senate Bill 612 also ignores the information submitted by state agencies in 2011. Instead of using the 2011 reports to focus regulatory reform efforts, Senate Bill 612 directs state environmental agencies — and only environmental agencies —  to  repeal or modify any rule that exceeds minimum federal requirements unless the rule fits under one of  the exceptions set out in the 2011 legislation for new rules.  The bill  also takes away the authority of  city and county governments to adopt local ordinances that go beyond state and federal environmental standards.

It isn’t clear how   legislators  mean to interpret the Senate Bill 612 provisions. Even the most detailed federal environmental regulations (like those adopted by EPA under the Clean Air Act and Safe Drinking Water Act) have gaps that need to be filled by state rules.  Federal regulations often lack  detail on program implementation, such as record-keeping and monitoring  requirements. Sometimes the gaps are more substantive; environmental and public health issues of great concern  in North Carolina have not always been national priorities.  Most  federally delegated or authorized  environmental programs  operate under federal regulations  that are much  less detailed than  the Clean Air Act and Safe Drinking Water Act standards. The  state’s  water quality,  solid waste and coastal management programs  all operate under federal  laws  that  create  a framework for state regulatory programs, but  for the most part leave development of specific environmental standards to the state.  For those programs, it will be  difficult to directly compare state rules to federal regulations and determine what is more or less stringent.

So,  the Senate Bill 612 language  raises a number of questions:

— Where fairly detailed federal  standards  exist, would the bill require repeal of state rules that address gaps in the federal regulations?   Or can state rules go beyond  federal regulations to  describe the content of a complete permit application or establish specific  monitoring  and record-keeping requirements?

— In programs that operate under a federal framework for regulation that  leaves  specific standard-setting largely to the state agency (with federal oversight),  will Senate Bill 612 require repeal of  types of standards and requirements not specifically  identified  in the   federal regulations?   Will  the state’s water quality program, for example,  be limited to using regulatory  tools provided under the Clean Water Act (such as wastewater discharge permits) to solve  a water pollution problem? Or can the program continue to address all major water pollution sources and use innovative approaches not contemplated in the federal rules?

— Does the exception for rules addressing a  “serious and unforeseen threat to public health, safety and welfare”    allow state rules to go beyond minimum federal requirements because of particular conditions  in the state or in response to concerns that may not have come up in development of the federal regulation? Or will the General Assembly take the position that if EPA doesn’t think putting a petroleum underground storage tank (UST)  near a drinking water well is a problem, then it must not be a problem?

The  2011 DENR report  to the Joint Legislative Committee on Regulatory Reform identified a number of state environmental rules that go beyond the requirements of  federal rules on the same subject. From a quick review, I found some examples of state rules that may have to be repealed under Senate Bill 612 :

● State waste management rules  requiring minimum separation from groundwater for land application of septage (to prevent groundwater contamination) and maximum slopes for land application sites (to prevent runoff to surface waters).

● State rules requiring water systems to  treat drinking water with excessive levels  of iron and manganese; both can cause discoloration of skin and teeth, as well as odor and taste problems.  Federal rules have only “advisory” standards for manganese and iron and do not require water systems to provide treatment to improve the water quality.

● State rules requiring a public water system to notify  the  owner  if routine water system monitoring  finds  a drinking water standard violation or high levels of fecal coliform bacteria in a water sample from a building. Federal rules only require water systems to provide notice to customers  if the water system overall violates Safe Drinking Water Act standards. Since  a water system can  exceed drinking water  standards at some number of  individual monitoring locations without  being in violation as a system (the exact number varies depending on the size of the water system and number of monitoring sites), the federal rules do not require the water system to notify  individual  property owners of  a problem  confined to a particular site. The state notice rule was adopted in 2006 after complaints that local water systems did not notify  citizens of high lead  levels in their drinking water after it was detected in routine water systems monitoring.

● Rules  prohibiting  location of a petroleum  underground storage tank (UST) within  100 feet from a  well serving the public or within 50 feet of any other well used for human consumption.

● Rules requiring setbacks for land application of all wastewater residuals (both sewage sludge and other solids  from wastewater treatment) and setbacks for disposal of coal combustion byproducts. The  rules include setbacks from property lines, public and private drinking water supplies, other water supply wells, and surface waters.

● Limits on emissions of  three toxic air pollutants (arsenic, beryllium and chromium)  by   industrial, medical, hazardous waste and sewage sludge incinerators.

It isn’t clear that these are the kind of “regulatory reforms”  that the General Assembly actually wants to see.

You can find the full report at:  http://www.ncdenr.gov/c/document_library/get_file?uuid=00ccda5a-8c0d-4579-a7d5-f0af4b1474f3&groupId=2444522

Note: Why the General Assembly believes  environmental rules  to be a greater burden on North Carolina citizens than other types of regulation will be  a subject for another day.