New Waste Classification May Mean New Costs

If you're collecting and treating leachate, then you should pay attention to new regulations that may affect your costs significantly. In a disturbing move for some landfill owners and operators, the U.S. Environmental Protection Agency (EPA) has placed previously non-hazardous petroleum waste materials on its hazardous waste list [see "What's Being Reclassified" on page 46].

The ramifications to the generators of these types of wastes seem clear - the increased cost of disposal in a Subtitle C vs. Subtitle D landfill.

The ruling's full economic impact, however, has yet to be determined. At the heart of the matter is whether or not leachate generated from landfills accepting these newly listed petroleum wastes will be subject to Subtitle C treatment standards.

While the comment period expired on September 8, 1998, the EPA has decided to grant a six-month extension - the longest allowed by law - to allow time for compliance and to better analyze the economic impact that leachate management of these petroleum wastes has on the solid waste industry, says Ross Elliott, EPA Senior Environmental Protection Specialist.

The new Petroleum Refineries rule (63 FR 42109) goes into effect February 8, 1999, Elliott says. The related leachate issue will be reexamined at that time. "We think it's the right thing to do because the EPA didn't even look at the effect the ruling would have on the industry," says Donna Kolar, divisional vice president and assistant general counsel for Browning-Ferris Industries (BFI), Houston.

Prior to the EPA amendment, BFI formally filed its concerns regarding the rule's economic impact on the solid waste industry.

According to Elliott, the BFI response came only weeks before the final ruling, providing the EPA insufficient time to conduct an economic analysis of the ruling. However, BFI's comments prompted the EPA to defer its decision on leachate management of these new hazardous wastes.

"We feel these leachates are being managed adequately under the Clean Water Act (CWA) during the deferment period," Elliott explains. "The new ruling triggered the leachate problem, but the BFI comments came too late to be included in the economic analysis.

"We just don't know how it's going to affect the solid waste industry," he continues. "The BFI numbers are high, but they've yet to be validated."

BFI reports that it will spend $29 million in capital costs and $52 million per year in operating costs to treat leachate now legally considered hazardous. Kolar estimates the total cost to the solid waste industry for disposing of the new hazardous wastes could exceed the $100 million annual threshold which, if validated, would require the EPA to conduct a thorough economic impact analysis.

"We think it's something the EPA needs to evaluate," Kolar says. "Our main concern is having to deal with these waters [leachate] as Subtitle C." Under the ruling, all leachate generated by or mixed with the listed petroleum wastes would have to be treated under Subtitle C guidelines, increasing leachate disposal cost from an average of 10 cents per gallon to nearly 50 cents per gallon.

"It's not just [leachate]. It's also piping, training and recordkeeping. We think there already are lots of regulatory schemes to deal with these wastes," Kolar says, referring to the proposed EPA CWA leachate amendment.

In its comments to the EPA, BFI said it believes that the CWA, in conjunction with the regulatory regime specified under the municipal solid waste landfill (MSWLF) regulations at 40 CFR Part 258, is the most appropriate regulatory venue for leachate management.

Elliott concurs. The EPA prefers to minimize the possible disruptions to leachate management and is attempting to integrate the new RCRA rulings with CWA regulatory schemes if possible, he notes.

In February 1998, the EPA's Office of Water proposed national effluent limitations guidelines and pretreatment standards for wastewater discharge. In support of this proposal, the EPA conducted a study of the volume and chemical composition of wastewaters generated by both Subtitle C and Subtitle D landfills.

The EPA did not propose pretreatment standards for Subtitle D landfill wastewaters sent to publicly owned water treatment facilities (POTW), because the majority of pollutants found in raw, non-hazardous landfill leachate are at levels comparable to wastewaters typically found at the headworks of a POTW.

According to Kolar, BFI also is concerned about the overall capacity of suitable Subtitle C wastewater treatments facilities. In its comments to the EPA, BFI speculated that if these leachates are classified as Subtitle C, they will no longer be accepted by most POTWs because POTWs will not want to be subject to RCRA Subtitle C regulations.

Also in question is whether or not this leachate can continue to be trucked to POTWs if sewer line portability is not available. "If we have to treat these waters as Subtitle C, we're not sure there will be enough treatment facilities to handle it," Kolar says.

However, the largest issue for BFI is the precedent the EPA seems to be establishing by adding petroleum wastes to the hazardous list. Kolar sees it as an ominous trend and fears it could lead the EPA to reevaluate other non-hazardous wastes.

"Is this going to happen every time the EPA has a new listing?" Kolar asks. "There's no way the industry can crystal ball what the EPA is going to do. It's always been BFI's position that we don't want to accept any hazardous wastes. Now, all of a sudden, we're in with the Subtitle C regime. And, it's not just us. Everybody else is in the exact same position."

More Private Sector Response More than 200,000 gallons of leachate per day could be affected by the new ruling, according to a survey conducted by the National Solid Wastes Management Association (NSWMA), Washington, D.C.

So far, however, NSWMA has received only 38 responses from its nationwide survey. Of these respondents, four claim to be accepting petroleum wastes currently. That's approximately 22,000 gallons per day of leachate that now are classified as hazardous.

"On the private sector side alone, you could have upwards of 200 landfills that have accepted that material," speculates Ed Repa, NSWMA's director of environmental programs. "That [figure] doesn't even include some of the bigger companies. More than 2 million gallons per month of leachate could be affected."

Like BFI, NSWMA supports the EPA's decision to defer the leachate ruling temporarily to allow time for analysis.

"We're going back to all the facilities that have reported to us and are asking them to supply us with leachate data, which is a key element," Repa explains. "The proposed clean water act will deal with leachate enough that it won't have any environmental impact. So why put another layer of regulations on top of that?"

Repa predicts the economic impact will be concentrated in regions of the country where oil refineries are prevalent, such as the Gulf Coast and in Western states.

"The waste is going somewhere," Repa says. "I think it's all going to be lumped around a few areas. [Oil refineries] go to the closest landfills. It doesn't matter if it's public or private."

The Word from the Municipal Front

The ruling doesn't appear to be affecting municipal landfills as much as private landfills, according to a recent Solid Waste Association of North America (SWANA), Silver Spring, Md., survey. Of the 1,000 surveys recently mailed, only six respondents reported accepting petroleum wastes.

"I think municipalities generally have not accepted these types of materials," says Brian Guzzone, SWANA's program manager. "But documentation is going to be hard to prove for the EPA."

Guzzone acknowledges the ruling could have a dramatic economic impact on private sector landfills, but he is not as concerned for municipal landfills. SWANA decided to conduct the survey, in part, to increase awareness of the issue among its members, and to determine if an official response to the EPA was warranted, he explains.

"We were concerned early on," Guzzone says. "But, after getting such a low positive response [from affected landfills], we didn't even feel the need to file comments on it at this time. Generally, SWANA always has advised [its members] not to accept these types of material."

While municipal landfills may not feel the heat of the new petroleum waste ruling as readily as the private sector, SWANA shares BFI's concern that this may just be the tip of the iceberg when it comes to retroactively determining what is hazardous and what is not.

"I think the bigger issue is retroactive enforcement," Guzzone says. "We don't want this to start a trend for the EPA to go back on materials that were once acceptable. If you look at what the EPA has done lately, there really haven't been any new regulations - just needling of old ones.

"Probably the biggest question we got [from the surveys] was, 'Does [the rule] cover contaminated soils?'" he says. "It does not, but, if the EPA starts looking at contaminated soils, it could have a huge impact on municipal landfills.

"I think there are two trends really," Guzzone continues. "On the one hand, the EPA is adding materials to the hazardous list. At the same time, it is taking other materials out of Subtitle C and making them Subtitle D. In general, SWANA has advised [its members] to be careful. You never know when that stuff is going to come back and sting you."

February 8, 1999 marks the deadline for compliance with the general rule listing petroleum wastes as hazardous as well as the deferment expiration date for leachate affected by this new ruling.

After that date, Elliott explains, the EPA either will decide to remove the deferment, thus placing the identified leachate under Subtitle C regulations, or make the deferment permanent, rendering the leachate exempt from the definitions of hazardous waste.

In the interim, some in the solid waste industry are building a case for economic hardship.

For more information, contact Ross Elliott at (703) 308-8748. Or visit the EPA Office of Solid Waste's website: id/petroleum/