October 1, 2004
JUST MONTHS AFTER IT WAS ISSUED, a federal rule that allows landfill operators to test alternate operational technologies such as bioreactors and phytocovers is being contested by an environmental group. The GrassRoots Recycling Network (GRRN), Madison, Wis., has asked a federal appeals court to review the Washington, D.C.-based Environmental Protection Agency's (EPA) “Research, Development and Demonstration [RD&D] Permits for Municipal Solid Waste [MSW] Landfills” final rule, which was published in the Federal Register in late March and took effect roughly one month later. [69 Fed. Reg. page 13,242, March 22, 2004.]
The rule, which the EPA says is intended to promote innovation, allows state directors of federally approved MSW landfill permit programs to issue RD&D permits to landfills to deviate from Subtitle D requirements for run-on control systems, liquids restrictions and final cover. However, the applicants must demonstrate that their plans will not increase the risks to human health and the environment. [See “RD&D Run-Down” on page 22].
As of late September, GRRN, which promotes a zero-waste philosophy of solid waste management, had not filed a brief detailing its entire legal arguments. In its “Petition for Review” to the U.S. Court of Appeals for the District of Columbia Circuit, GRRN only said that the final rule “increases the exposure of petitioner's members to air and drinking water pollution associated with a variety of adverse health, welfare and property effects.” [GrassRoots Recycling Network v. United States Environmental Protection Agency, No. 04-1196, D.C. Cir., June 21, 2004.]
However, GRRN has indicated at least part of what its argument will be. In its brief opposing a request by the Silver Spring, Md.-based Solid Waste Association of North America (SWANA) and the Washington, D.C.-based National Solid Wastes Management Association (NSWMA) to file a joint amicus brief supporting the rule, GRRN questioned “whether the EPA had the authority to promulgate the rule in the first place” under the Resource Conservation and Recovery Act (RCRA).
In August 2002, GRRN and a coalition of environmental organizations filed a document with the EPA outlining their opposition to the then-proposed rule. The groups argued that the rule would violate RCRA because by allowing states to grant variances from Subtitle D requirements, the agency would delegate the authority to set landfill standards from the federal government to the states. In its final rule, the EPA responded that the rule does not delegate the authority because “any variance under today's rule [must] be equivalent to the existing criteria in protecting human health and the environment.”
NSWMA and SWANA believe the rule safely promotes the advancement of landfill technology. “The rule is very positive for the industry because it allows landfill operators to look at ways to manage waste more efficiently and safely,” says Bruce Parker, president and CEO of NSWMA.
Barry Shanoff, general counsel for SWANA, says he would be “very surprised” if the court doesn't allow his organization and NSWMA to file the amicus brief. “Our two organizations represent virtually all of the landfills that would be affected by this rule,” he says.
In its brief opposing SWANA and NSWMA's request, GRRN said that, in making their petition, the organizations “identified no particular assets that enable them to help the court on the issues of law present in this proceeding.” However, Shanoff says that what the D.C. Circuit looks for in amicus briefs is “a different angle than the strict legal arguments.”
“The presence of an amicus party in this case is an opportunity to educate the judges in how exactly this decision would affect day-to-day operations or long-term operations of landfills,” Shanoff says. “I think the judges would find that informative.”