Solid Waste: Trash, cash and landfill gas remain part of the debate

For cities and counties with solid waste concerns (i.e. all those with populations of around 10 or greater), there actually may be some items of note in the steady stream of mixed signals emanating from Washington.

On the issue of flow control, for example, NACo Associate Legislative Director Diane Shea says she sees a 50 to 55 percent chance that interstate waste – and thus flow control – legislation will be voted on by Congress this year. The flow control and interstate waste bills have been paired since 1993, and Congress is unlikely to move on the issues separately, according to Shea.

“They’re really two sides of one coin,” she says. “The real question is whether the interstate waste bill is going to move very quickly. It’s really contingent upon whether any agreement can be reached between the exporters and importers.”

This agreement would be between key exporting states like New York and those with landfill capacity like Pennsylvania, Ohio, Indiana and Michigan. If a deal were to be hashed out, some form of limited flow control would have a fair chance of passing.

The announcement this year that New York’s massive Fresh Kills landfill will close in 2001 may make reaching this agreement a more urgent task.

“I think the announcement gives [interstate waste legislation] considerable impetus for moving,” says John Skinner, chief executive officer for the Solid Waste Association of North America (SWANA). “It now is becoming a very real issue because people are concerned about where the (New York) waste will go.”

According to Shea, disagreement is minimal over a very narrowly worded bill granting temporary flow control to “grandfathered” agencies. Those agencies that were operating facilities by 1994, built in anticipation of guaranteed flows of trash, would be allowed to control waste flow to the facilities until their bonds were paid off.

As for any relief beyond that, the outlook is not promising. Barry Shanoff, a Washington, D.C., attorney and columnist for World Wastes magazine, gives any broader and long-term version of flow control the “proverbial snowball’s chance.”

“The people (in Congress) who are still in a position to call the shots on flow control have not changed,” Shanoff says. “My guess is that the best local governments will get will be a very narrowly phrased flow control bill that will attempt to bail out communities with a very substantial investment in facilities.”

N.C. Vasuki, chief executive officer of the Delaware Solid Waste Authority, says he is not hopeful for any action at all on flow control this year. In his view, even a limited version is not likely to make it through Congress.

“I don’t see much happening,” he says. “I just don’t think there is enough political interest to do the right thing.”

In the meantime, cities and counties cannot exactly sit and wait for help, and most are taking steps now to meet debt obligations as best they can.

In New York state, for example, about $1.2 billion invested in solid waste facilities is “at risk,” according to George Bevington, president of the New York State Association for Solid Waste Management.

“The way that shortfalls are being taken care of in some (New York) municipalities is by basically moving taxes from general funds into the solid waste budget,” says Bevington, who is also director of solid waste management for Fulton County, N.Y. In addition, he mentions creating special garbage districts or taking over waste collection as possible solutions, since these steps can ensure at least some flow of waste to facilities.

If the chance for a narrow form of flow control this year is a coin toss, then the outlook for some relief from Superfund liability is more a roll of the dice. The desired outcome for cities and counties is not nearly as probable.

“It looks unlikely, at least right now, that legislation is going to pass in anything like the form it’s in now, if at all,” Shea says. “It just doesn’t look very promising right now, [but] things can turn around very quickly.”

A Superfund reform bill introduced in the Senate in January would include an exemption for municipal “generators and transporters” from liability for waste contributed to a Superfund site. In addition, for municipal owners or operators of “co-disposal” sites, liability would be capped at 10 percent of total cleanup costs for communities under 100,000 in population and at 20 percent for larger communities. However, exemptions would apply only to costs incurred after enactment of the law.

Shanoff says he does not see much support for this kind of relief, given that cities and counties are working for a sympathetic hearing on so many other big issues.

“I haven’t seen any signs right now that municipal governments have the kind of clout it’s going to take to carve out the kind of exceptions they want,” he says. “I don’t think that there is this tremendous sympathy in Congress for local governments. How many times can local governments come to the well? They’re going to have to pick and choose their priorities.”

EPA’s support, at least in theory, of some kind of exemptions for municipalities looks like a slightly more promising avenue. Local governments have asked EPA to look for an administrative means of providing relief, according to Shea, and the agency is closely examining the options that current Superfund law might allow.

“I’m not sure how long that analysis is going to take,” Shea says. “We’re continuing to work with [EPA], and we hope that it’s within a few months, but it’s very hard to say.”

A best-case scenario would include caps on municipal liability for cleanup costs, as well as some limit on the third-party lawsuits that have plagued many cities and counties.

“We’d like these third-party lawsuits stopped, so that local governments don’t have this Sword of Damocles hanging over their heads into the future,” Shea says.

SWANA’s Skinner also says he is unsure of the prospects for help from EPA. “If [Congress] starts moving legislation, the agency will probably wait to see what happens,” he says. “There have not been clear signals on this to be able to see where it’s going.”

Although it may not happen this year, Superfund reform is possible in the long-run because authorization for the funding tax has expired. Thus, the Superfund Trust Fund is not being replenished.

“At some point, probably sooner rather than later depending on the pace of the cleanups, that money is going to run out,” Shea says.

For municipal and private partners in projects for landfill gas use, the outlook is encouraging, though still uncertain. According to President Clinton’s February budget proposal, these projects would have to be in operation by June 1997 to qualify for the Section 29 tax credit, rather than by the original cutoff date of June 1998.

The tax credit – which would total around $500 million by 2007 – has been a key financing factor for the 150 to 200 projects that met an initial 1996 deadline for having binding contracts in place, according to Skinner.

Although Skinner says the proposed 1997 deadline would be virtually impossible to meet, the good news is that he expects Congress to eventually reject this provision.

“The (1997) deadline will probably pass before any legislation shortening the deadline passes,” he says, referring to the length of budget debates in recent years. “I think that eventually the Congress will not go ahead with this. It’s a question of whether they can give a clear signal fast enough so that it will not affect the financing of projects.”

Regardless of the Section 29 issue, EPA’s Tom Kerr urges municipalities to look seriously at projects for using landfill gas. Kerr heads the agency’s Landfill Methane Outreach Program [(888) 782-7937], which provides information, software and other tools for landfill owners considering gas-to-energy projects.

“Our advice to the industry is that there is life beyond Section 29,” he says.

For example, the debate over deregulation of the electrical industry may hold some promise. The debate on the state and federal level has included talk about supporting development of renewable energy resources, such as landfill gas and MSW, in the name of environmental protection.

Municipalities can support use of landfill gas as a renewable source by asking, in negotiations with investor-owned utilities, that a certain percentage of power provided by the utility be from a renewable source. “The municipality has to be the one to think creatively,” Kerr says.