NEW MOUNTAIN RANGES FOR TEXAS: MUNICIPAL SOLID WASTE LANDFILLS
A REPORT BY THE LONE STAR CHAPTER OF THE SIERRA CLUB
MARTINEZ ENVIRONMENTAL GROUP
For information on the report contact:
Ken Kramer, Sierra Club, Austin (512) 476-6962
Don McKenzie, MEG, San Antonio (210) 661-0007
NEW MOUNTAIN RANGES FOR TEXAS MUNICIPAL SOLID WASTE (MSW) LANDFILLS
Summary: In the early 1990s new standards requiring better technologies for landfills were established. Now instead of requiring the creation of new landfills that meet those standards, the state environmental regulatory agency, the Texas Natural Resource Conservation Commission (TNRCC), is letting many landfills in Texas expand vertically over old landfills -- often over landfills with no or inadequate liners and in some areas with existing ground water pollution. With the blessing of TNRCC, most landfill operators are cutting costs by building over old landfills rather than putting the trash in the ground with protection from new and better liners. Once TNRCC allowed one operator to build sky high, most others have asked to do so to compete. Mountains of wastes are one result of this policy. Many landfills will soon be the highest points for many miles around the site.
There are many problems with TNRCC's practices of encouraging these new trash mountains, including
* Grandfathering Old Landfill Technology: The use of new and safer designs and technology to improve landfills has been postponed by TNRCC for many years.
* Expanding Ground Water Pollution: Many of the vertical expansions have occurred over landfills that leak. Piling more waste on top delays clean-up and transfers the risks to future generations of Texans.
* Breaking Promises: TNRCC and many landfill operators told communities that nearby landfills would be below ground and have limited lifetimes. Landowners who have built new homes or are renovating their old homes did so based on these promises. Now TNRCC is approving mountains of trash next door with active landfills for the next 30, even 60, years.
* Impacting Communities Dramatically without Notice: Clearly the prospects of nearby mountains of waste change communities. Residents who are able to leave will do so. They will be replaced by industries attracted to cheap land or the proximity of the landfill. Residential and rural communities will become industrial. Those who can not afford to leave will face not only land depreciation but also rats, blowing wastes and odors.
* Increasing Waste Management Problems: Trash mountains have much greater problems than landfills in the ground. The new landfills make high launching pads for wastes and dusts that get blown farther off-site. Rainfall runoff is easy to retain in a pit, but, as it flows down the mountain, it can carry polutants off-site.
* "Condemning" Private Property: The landfill operators know they can get new lands cheaply by running off the neighbors. They do not have the powers of local governments to condemn the lands they want for expansion, but they have the power to make nearby residents' lives so miserable that those neighbors have to move a de facto "condemnation" of private property. TNRCC is helping the operators in this effort by refusing to enforce the existing laws that prohibit nuisance conditions, odors, blowing wastes, rats and flies.
* Posing Threats from Industrial Waste: Under the policies of TNRCC, MWS landfills do not just take household waste, they take large amounts of asbestos and other industrial waste, even waste classified as toxic. Often there is no public notice that such wastes are passing through neighborhoods or filling the landfills.
* Creating Disincentives to Recycling: Recycling is often uneconomical because TNRCC is keeping the costs of landfilling cheap. If recycling can't compete, more landfills will be built and existing landfills will grow. * Creating a False Landfill "Crisis": TNRCC has helped the waste industry create a false crisis of landfill shortage. TNRCC echoes the waste companies' argument that "the waste has to go somewhere." It is not that simple. TNRCC needs to be honest with the public. Moreover, TNRCC should be directed to worry about protecting public health and air and water in the communities burdened with the landfills, often Texas' lowest income communities. TNRCC is currently working to protect the big waste management companies. MAJOR CHANGES ARE NEEDED TO ADDRESS PROBLEMS WITH LANDFILLS ELIMINATE THE GRANDFATHERING OF OLD LANDFILLS/REQUIRE NEW TECHNOLOGIES:
The policy of TNRCC to allow vertical expansions of landfills over unlined or poorly lined landfills has delayed the use of new and better landfilling technologies and created new problems at and around landfills. This practice by TNRCC must be ended.
PROTECT PRIVATE PROPERTY RIGHTS BY ENFORCING LANDFILL RULES AND PERMITS:
TNRCC's history of hands-off treatment of MSW landfills, even those with terrible records, has resulted in damages to nearby landowners and their rights to use their properties. Many sell out for a song to the landfill operators creating the problems. TNRCC is allowing landfills to expand on to new lands they otherwise could not have bought or bought so cheaply. TNRCC needs to enforce the law.
REQUIRE EXPIRATION DATES FOR LANDFILL PERMITS:
TNRCC issues lifetime permits for landfills even when the operator proposes 50 or 100 years of operation. The agency has refused to treat MSW landfills like all other significant permits and require periodic renewals of the permit, with periodic review of the landfill practices, new technologies, and impacts on the communities. Renewals of MSW landfill permits every 5 years would be appropriate.
STRENGTHEN THE STANDARDS FOR LANDFILLS:
TNRCC has accepted new, bad practices because of the vertical expansions. Historically, for a below ground landfill, the dirt that was to be removed to create the hole could can then be used as cover for the wastes daily. Operators of waste mounds had to truck in dirt, an expensive practice. Now, TNRCC has given the operators of such mounds permission to use alternatives for the daily cover, such as sludge, contaminated dirt, tire chips and tarps. Each alternative has major problems, but the public is not even notified or given an opportunity to object to such alternatives. TNRCC's policies need to change.
REJECT THE FALSE CLAIM OF A LANDFILL "CRISIS":
Until recently, TNRCC did not have the facts to know if there was a landfill capacity shortage. The agency simply accepted the industry's claims that there was one. After, all 500 landfills closed over the last 10 to 15 years. TNRCC now knows better. TNRCC had permitted enough space by 1998 to serve for the next 30 years. Still TNRCC is approving more landfills, and doing so without considering need or the risks of having too much landfill space and some operators going bankrupt. TNRCC needs to assure that future Texans will not pay for failed and abandoned landfills.
INFORM THE PUBLIC THAT MUNICIPAL LANDFILLS CAN TAKE INDUSTRIAL WASTE:
MSW landfills can take industrial waste, even toxic industrial waste. Some MSW landfill operators take more industrial than municipal waste. TNRCC allows toxic waste to be accepted without any notice to the public. TNRCC needs to assure real notice of the facts to affected communities.
REQUIRE ADEQUATE PUBLIC NOTICE OF LANDFILL EXPANSIONS AND AMENDMENTS:
Texas law requires direct notice to all residents and businesses within ½ mile of a new MSW landfill. The law lets TNRCC decide how widespread the notice for amendments should be. TNRCC only requires notice to lands within 500 feet, even if the amendment is for an expansion that is a 100-fold increase. TNRCC needs to assure adequate notice for such major changes (at least ½ mile).
GRANDFATHERING OLD LANDFILLS TO AVOID NEW TECHNOLOGIES
Problem: Landfills leak. Water gets into landfills, picks up contamination from trash and leaks out into the groundwater. TNRCC data show major leaks at about 25 landfills in Texas. In about 1990, federal rules required that states assure that new landfills and lateral expansions of existing landfills use "liner" systems to minimize this leakage. TNRCC passed regulations to do so, but TNRCC has also created loopholes that "grandfather" many unlined or poorly lined landfills. TNRCC allows huge vertical expansions over such landfills. TNCRR also does not require barriers between the new lined and old unlined parts of landfills as they expand laterally.
Discussion: Texas's municipal solid waste landfills must meet certain minimum federal standards. Among those are the standard EPA requirements found in 40 CFR § 258.40(a)(2) and adopted in Texas at 30 TAC § 330.200(a)(2). These provide that:
"(a) New municipal solid waste landfill facility (MSWLF) units and lateral expansions shall [have, with some exceptions,] . . . (2) a composite liner, as defined in subsection (b) of this section, and a leachate collection system ...."
There is sound reason for the law. The 1998 Joint Groundwater Monitoring and Contamination Report, a state report, lists 24 instances of groundwater contamination that can be traced to 24 leaking landfills. (TNRCC updates this "leaker list" every two years.)
Vertical landfill expansions are undefined in Texas regulations. There are no liner regulations at all governing them. TNRCC takes the position that significant vertical expansions over unlined landfills were not forbidden by EPA regulations, so TNRCC allows such expansions. Also, because federal rules are not clear, TNRCC had not required unlined parts of existing landfills be sealed off from either vertical expansions or lateral expansions. TNRCC is simply allowing the continued use of old and discredited technologies.
TNRCC has recently allowed a vertical expansion of the Waste Management of Texas landfill in Alvin; this landfill actually sits in the area's uppermost aquifer, and TNRCC permitted a vertical expansion there in excess of 100 feet over the unlined portion of the existing landfill. The recently permitted Allied Waste landfill outside Palmer is another unfortunate example (65' above the ground). In Amarillo, TNRCC approved a vertical expansion over an unlined landfill with ground water contamination in the Ogallala Aquifer.
A vertical expansion over any part of a municipal solid waste landfill that does not meet the new linerand other technology standards should be prohibited. Any part of any landfill that does not meet such criteria must be hydrologically segregated from the rest of the facility. Finally, no vertical expansion should be allowed over a section of the landfill when there is contamination in the ground water, until the ground water is restored and further contamination stopped.
LACK OF TNRCC ENFORCEMENT TO PROTECT PRIVATE PROPERTY
Problem: Because TNRCC does not create incentives for MSW landfill operators to comply with the law, TNRCC's rules, or permit conditions, surrounding landowners are being damaged. In some cases the only remedy for the landowners is to sell their at a low price property to the landfill operators.
Discussion: Nearby residents, businesses and others often suffer damages to their properties as a result of operators of landfills not complying with Texas law and including good house keeping standards. When they complain, TNRCC rarely takes action. Often the damages or nuisances are small in dollar figures and private lawsuits for damages are not practical. In frustration, the landowners often sell out to the landfill operator, paving the way for the next wave of expansion of the landfill and the next set of landowner victims.
Common problems created at Texas MSW landfills include:
* Windblown waste, trash and dusts that move off site;
* Noise and lights at all times of the night and day;
* Rats, flies, and other animals that then invade nearby properties;
* Contamination of ground water and surface waters used by others.
TNRCC has a history of ignoring the problems:
* In the early 1990s, TNRCC advised landfill operators that they would not seek penalties for violations
* In the mid-1990s TNRCC set a policy directing its inspectors to give advance notice of inspections.
TNRCC is now blaming surrounding landowners for the problems. Despite its failure to enforce the law and stop the violations, TNRCC is now putting the burden on the nearby residents to solve the problems. In a recent letter to a landowner who lives adjacent to a BFI landfill near Amarillo, TNRCC stated that if the landowner did not let BFI on to his property to recover its waste - apparently under BFI's terms for entry - he would be liable for the wastes that BFI allowed to blow on to his land. TNRCC does not issue a notice of violation to BFI for letting waste repeatedly blow onto land of the adjacent property owner.
TNRCC is giving landfill operators the equivalent of condemnation power. Many Texans have been left with no choice but to move away from landfills. If they were there first, they rarely can recover their true costs or property values. Often no one will buy the property except the landfill operator. Just 3 years ago, BFI bought out dozens of landowners near its landfill in San Antonio when these landowners could not get TNRCC to take enforcement actions. Now BFI is expanding,S and those that refused to sell out are faced with even worse conditions. That pattern is occurring all over Texas.
Real incentives for compliance are needed. TNRCC must take quick and effective enforcement action against violations by landfill operators. In addition, consideration should be given to prohibitions on any renewals or amendments to landfill permits if the operator is out of compliance at the time or has had a recent history of non-compliance. In the long run it may be necessary to grant affected persons the right to sue operators for the violations, with a right to recover costs of such suits.
NEED FOR EXPIRATION DATES IN MSW LANDFILL PERMITSProblem: There are No Time Limits or Renewal Requirements in MSW Landfill Permits.
Unlike almost all other permits issued by TNRCC, permits for municipal waste landfills have no expiration dates. Permits can last forever and do not have to be renewed or reviewed periodically. Yet, Texas law and TNRCC rules allow TNRCC to set expiration dates and renewal requirements. TNRCC has chosen not to do so for MSW landfills. (See, §361.087, Tx. Health & Safety Code and TNRCC rules §305.127 (1)(B)(ii) & (F) and §330.63(a)&(b)
Therefore, this year, the City of Henderson's landfill that had been closed for 8 years (with notice to surrounding landowners that it would no longer be used), was allowed to be reborn by TNRCC because the permit had never expired. There are some 700 hundred closed landfills in Texas, that apparently could also be reborn under TNRCC's policies.
A. Expiration Dates and Renewal/Review Provisions Serve Important Goals.
1. Periodic renewal allows for periodic public input for almost all other TNRCC permits:
Texas law provides for public notice and opportunities for public input.
2. Periodic review of permittees' activities improves compliance:
Creates incentives to comply, at least during the renewal/review period.
3. Periodic updating for new technologies, new information or changed conditions:
Allows the state to take advantage of advances in pollution control technologies. Allows
consideration of new
or improved information, e.g. discovery of a fault.
B. The Existing Time Limits for TNRCC Permits Include
1. Hazardous Waste Landfills:
Permits expire every 10 years with an additional review every 5 years. (§361.087, Tx. Health & Safety Code & TNRCC rule §305.127(1)(B).)
2. Discharge of Sewage or Other Waste Waters to Texas Rivers, Streams, Lakes & Bays:
Most permits expire every 5 years. (§26.029, Tx. Water Code & TNRCC rule §305.127(1)(C).)
3. Disposal of Wastes into Injection Wells:
Permits expire every 10 years. (§§27.011 & .051, Tx. Water Code & TNRCC rule §305.127(1)(A).)
4. Emissions of Air Pollutants:
Some permits must be renewed every 5 or 10 years. Other permits must be "reviewed" every 5, 10 or 15 years. Renewal and review dates depend upon the type and date of permit. Both processes provide for public notice for and public input. (§§ 382.0541(a)(5), .0543(a) & .055(a). Tx. Health & Safety Code.)
TNRCC should limit each MSW permit to aterm of 5 years, requiring renewal at the end of the term of the permit.
STRENGTHENING THE STANDARDS FOR LANDFILLS
TNRCC has reduced the standards for landfills as the agency has let them increase in size. For example, operators of waste mountains have discovered that they often do not have enough dirt at the site for daily cover and seek approval from TNRCC to use less effective alternative materials. The operators have argued that they need regulatory relief or they will have to shut down. Since TNRCC has placed a high priority on keeping landfills open, TNRCC simply agrees to reduce the standards.
Discussion: TNRCC has been dependent upon the waste industry for information:
Lack of resources and lack of will has put TNRCC at the mercy of the large waste companies. The companies have the information and the expertise, and TNRCC depends on them to share their information. TNRCC trusts the operators to provide valid information.
The waste industry does not give TNRCC the true facts:
In the first half of the 1990s, TNRCC did not require landfill operators to report on their operations in a way that the agency could determine facts, such as how much capacity in landfills Texas had and what landfill needs existed. The industry told TNRCC there was a crisis and that new landfill space needed to be authorized quickly. TNRCC did so, and now the agency knows there were a few shortages, but there was no crisis.
Still TNRCC relies on the industry. Even TNRCC's MSW advisory committee is dominated by landfill operators, not independent experts. TNRCC has not and can not develop a staff with all the expertise needed, but it can help develop and rely upon more independent sources. University professors and many outside consultants can make up for the staff's lack of expertise, if TNRCC would make the effort to develop the needed relationships with them.
When the industry seeks regulatory relief and reduced standards, TNRCC says "Yes":
One example: The standard practices of the industry and the requirements of TNRCC for reducing odors, rats and windblown waste is the use of 6 inches of dirt applied daily. When landfills dug into the ground, the needed dirt was there. Now that landfills are mounds, dirt would have to be trucked to the site. As a result, the operators have convinced TNRCC to allow them to use all manners of alternatives, usually other wastes that someone will pay the landfill to take, such as sludge contaminated soils, and shredded tires. Now tarps that are removed every day have been approved. With tarps, the operators not only get cheap cover, they save the six inches of landfill space that historically has been filled with the cover dirt. Unfortunately, none of the alternative covers work as well as the dirt, and they may bring new problems. For example, the odors released in the mornings when the tarps are removed are adding dramatically new problems for surrounding communities. TNRCC does not even bother to make its decisions on alternative covers with any notice or opportunity for the affected communities to have input. Nor does TNRCC take the proposals to any team of independent experts to get their opinions.
TNRCC should require strict standards for all landfills. TNRCC should not change any standards or approve any alternative to current standards without a rulemaking process or other process that assures effective public participation. The composition of TNRCC's MSW advisory committee must be revised to assure that the committee has adequate independent expertise and balanced representation to provide objective advice to the agency.
FULL DISCLOSURE MUNICIPAL LANDFILLS MAY TAKE INDUSTRIAL WASTE
Problem: TNRCC allows Municipal Solid Waste Landfills to take much more than municipal wastes. Some MSW landfills have filled their space with up to 75%, possibly even 90% industrial wastes. TNRCC even allows Class 1 industrial waste, waste that can be toxicor corrosive into these MSW landfills. TNRCC rules allow such waste to be taken, even if the original representations of the operators did not include such wastes. TNRCC allows such waste to be taken with no notice to the communities that the nature of much of the waste coming through their streets and neighborhoods has changed.
Discussion: Industrial waste generally falls into five categories: Hazardous, Class 1, Class 2 Class 3 and Special wastes. Hazardous wastes are those that meet the definition in federal law and many wastes that are hazardous in fact are not under the law. Such wastes generally fall into the category of Class 1 wastes in Texas. Before the federal law, Texas' Class 1 waste category included all wastes that were toxic, corrosive, and flammable. Now, some of those wastes are regulated more stringently as "hazardous" wastes.
Texas has two landfills that take most of our hazardous industrial waste. Texas has only one landfill designed and permitted for other industrial waste. That is so because most industrial wastes go to municipal waste landfills. Most special wastes also go to such landfills. Special wastes include wastes from maquiladoras in Mexico, asbestos wastes, and other wastes needing special management.
The "20% rule": Under TNRCC rules, many MSW landfill in Texas can take up to 20% Class 1 industrial waste with a permit that did not mention such wastes when issued. §330.137(f) Thus, even if members of the community were deeply involved in TNRCC's permitting decisions for a nearby landfill, they might not know that the landfill was taking Class 1 toxic wastes.
The "blanket approval": TNRCC usually grants approval to landfills taking Class 1 and Special wastes to existing landfills in a blanket approval, rather than as a normal major amendment to the permit. Then again, there is little or no effective notice to the public.
Filling up MSW landfills: In addition to Class 1 and Special wastes, there are thousands of tons of Class 2 and Class 3 wastes filling the MSW landfills in Texas. TNRCC's rules allow these two types of wastes to go to MSW landfills, "provided the acceptance of such wastes does not interfere with site operations." TNRCC makes no effort to make sure there is sufficient capacity for municipal solid wastes before industrial wastes can fill up a landfill. These two types of wastes often do not create great risks, but they do mean that bigger and higher MSW landfills are being built.
TNRCC needs to be honest with the public. The public has a right to know. TNRCC should be required to do an assessment of landfill space and needs that distinguishes between industrial and municipal wastes. It needs to require full notice that MSW landfills are taking or can take toxic industrial or special wastes.
NEED FOR ADEQUATE PUBLIC NOTICE
Problem: Landfills operators can get a "foot in the door" with a small landfill and then expand while no one is watching. TNRCC's notice requirements not only allow this, they encourage such actions. Notice for a new permit must be sent to landowners within one-half mile of the boundary of the landfill. Notice of amendments only must be sent to landowners within 500 feet, even if that amendment is for a landfill 100 times in size.
Discussion: Texas law requires that the applicant for a MSW landfill must "mail notice to each resident or business address located within one-half mile." (§361.081 TEX. HEALTH & SAFETY CODE.) The law also directs TNRCC to adopt rules to assure public notice of other applications for MSW landfills, including amendments. (§361.079 TEX. HEALTH & SAFETY CODE.)
Clearly the Legislature indicated that people living or working within ½ mile of a new landfill could be affected and deserve direct notice. By rule, however, TNRCC requires only such mailed notice to landowners on the application map (§39.13(a)), which for MSW applications includes adjacent landowners and people within a reasonable distance (§305.45(a)(6)(D)) and, at least, 500 feet from the boundaries of the landfill. (§330.52(a)(4)(D)). In practice, TNRCC only requires mailed notice to those landowners within 500 feet of the landfill. It could requice better notice.
A landfill like the BFI landfill in San Antonio can start small. Members of the community within ½ mile will get direct notice. Some of them will likely advise others, but the notice will be of a small, often below ground, landfill. Then an applicant like BFI can apply for an "amendment" under TNRCC rules to expand to any size it wants - even if the "footprint" of the landfill will grow 10 or 100 times the original size or the height will rise from ground level to be the highest point in the region.
TNRCC treats any expansion as an amendment, even if the landfill is essentially a new landfill next to or over an existing one. Thus, few people who knew of the original plan or permit will get notice of the expansion, even though many could be much more affected by the expansion.
A smart landfill operator can do even better under TNRCC's rules. Again, as with the BFI San Antonio landfill, an operator can buy out the neighbors who have been complaining and put its own employees in those houses or leave them empty. Then the only "members of the community" who get direct notice (i.e. that live within 500 feet) may be the employees of the landfill.
TNRCC needs to provide notice to landowners within at least one half
mile for any new landfill and for any expansion of an existing landfill - laterally or
TEXAS' NEWEST MOUNTAIN RANGES
With Mountains Over 60 feet from TNRCC files
|New Range||Lift Operator||Nearest City/County||Height in feet|
San Antonio-Austin Range:
North East Texas Range:
West Texas Range:
Pine Hill Farms
City of Midland
MSW LANDFILLS IN TEXAS: FACTS AND FIGURES
Number of open Landfills:
Number of Active Landfills:
Number of Inactive Landfills:
Number of Closed Landfills:
Number of Landfills permitted to pile waste more than 50 Feet above the ground:
Examples of how high:
Capacity of individual landfills:
Landfill capacity for Texas:
|213, as of 1998.
184, as of 1998.
29, as of 1998, with 10 having operated and 19 not yet in operation.
Over 700 in the last 15 years, mostly small landfills serving small communities. Most closed rather than meet the new design and operations standards for landfills.
42, as of 1998, with a number of applications pending at TNRCC for other landfills.
Waste Management, 240 feet at Alvin, 190 feet at ferris, 170 feet at Fort Worth.
BFI, 156 feet at Lewisville, 150 feet at Itasca, 143 feet at Houston
They range from no capacity to several hundred years, at TNRCC predicted rates of disposal. For example, TNRCC predicts that BFI's Itasca landfill has a future life of 225 years! BFI in San Antonio has only a few years left, but is seeking to expand to have space for another 50 years.
30 years on average. That is, there is enough capacity in the existing MSW landfill permits to take all projected wastes in Texas for the next 30 years. If TNRCC were to issue permits for the pending applications that number would likely rise to 40 or 50 years. Two regional municipal solid waste planning regions are short on currently permitted capacity, but several others have over 100 years of extra capacity, with the Lubbock region having 177 years.
Source: The information comes from TNRCC as of February 2000. It is mostly based on 1998 reporting figures.
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