Fedaral Register inadequate landfill regulation

In brief –


EPA issued regulations in 1991 to protect groundwater from leaking landfills, and, in 1996, to reduce fugitive landfill gas.

  • Groundwater. However, the agency adopted rules that it knew relied upon barriers that would deteriorate and fail within decades while the threats persisted for centuries. Pollution was only delayed, but not prevented – and only until shortly after the time when the owner’s liability was expected to end.

  • Air. Adopted during a period of de-regulatory fervor, these rules effectively delegated most decisions to the landfill owner, even though, the fact of toxic constituents in landfill gas mandated strict standards. The rule’s primary effect was only to encourage owners of those largest sites to do what they were financially motivated to do anyway – to install sufficient extractive capacity to prevent gas buildup inside from blowing out the expensive covers installed over closed landfills. But, a pressure relief value was manifestly inadequate to protect neighbors, nonetheless seriously reduce greenhouse gases.

In both cases, the agency acted as if it were predominately preoccupied with accommodating the regulated industry’s desire to minimize costs, and exhibited scant concern for protecting public health or the environment, as the law required.


Two major sets of landfill rules

schematic of landfill design

Schematic of landfill design
Credit: City of College Station

In 1991, EPA issued the first federal rules requiring minimum standards for landfills, enforced by the states, to protect groundwater, and, in 1996, to reduce landfill gas emissions. See graphic below, which illustrates the systems that are discussed in the TABLE that follows. Landfill advocates points to these extensive federal and state landfill regulations and concludes that today’s sites are “highly engineered” and “state-of-the-art” facilities fully protective of the environment that are “a far cry from the past.”

However, it is difficult to review the history of landfill practices and reach a conclusion that today’s rules are intended to achieve the objective, set forth in the applicable law, to insure that, “at a minimum ... there is no reasonable probability of adverse effects on health or the environment” [at §6944(a)].

For the repeated practice, which continues to this day, suggests a disinclination to spend more than the minimum necessary to address concerns. Ironically, many of those concerns are an unintended consequence from the prior attempt to staunch problems perceived earlier.

Studiously ignored has been the disturbing implication from this recurring predicament of wholly new problems arising out of the same on-the-cheap efforts to patch over earlier tribulations. Most likely, this indicates that land disposal of biologically active and hazardous wastes – the primary source of environmental threats – can never be made feasible and safe.

Historical background to landfill regulation

Inadequate landfill regulation

Artist’s depiction of mid-19th century cholera outbreak in London

Historically, those worries over garbage dumping originally focused on epidemics, then on odors and nuisances, then contaminated drinking water and explosive landfill gas, and most recently global warming. Reluctant efforts to respond to those concerns did not appear to extend much further than papering them over. Initially, that was done by moving the wastes to other places, further away, and ultimately, to shift the occurrence of their impacts into the future.


History of Waste Practices Before Current Rules Adopted in 1990s




Trash picked over in Haitian streets

Dumped into the street. Except occasionally in ancient Greece and Rome, from prehistoric times through the modern era, people typically tossed their slop out the window into the streets, which is one of the reasons ancient archeological sites have had to be excavated – for street levels were raised by the mounds of offal, and hovels were rebuilt on top of the decomposed remains. Also left on the streets by the 18th and 19th centuries was horse manure, along with ash bins from burning coal. The trash in the streets was picked over by roving bands of dogs and pigs, and rummaged through by rag pickers and dust men, as happened as recently as in Lincoln’s Washington during the Civil War, in many other American cities until the end of the 19th century, and in poor parts of the world where it continues to this day.


Artist’s depiction of mid-19th century cholera outbreak in London

Epidemics. In reaction to the cesspool in the streets, a Sanitary Movement rose up by the end of the 1800s, led by heros of that age such as Col. George E. Warren and his white wing army of carters in New York use horse drawn wagons to pick up and haul trash away. That movement had been animated by the fear that epidemics were caused by a miasma arising out of the cesspools in the streets, causing diseases such as cholera, which, each summer, brought diarrhea, vomiting, leg cramps and often death. So, instead of throwing trash onto the street, the garbage was carted to nearby swill yards to be fed to the pigs (this having been in the days before packaging).


Swill yards. Feeding pigs garbage and then eating the slaughtered hogs often caused trichinosis, which led to nausea, heartburn, diarrhea, muscle pain, and fever, and, in some cases, paralysis and death.

Burning at an open dump in Indonesia

Open dumps. Trash was loaded on scowls and taken out to sea – until the detritus washed back onto shore – and then was simply dumped in the nearest uninhabited swamps and ravines, just beyond where the city’s street lamps turned into corn fields. When these pits filled, they were set on fire to reduce the volume and provide space for more, reviving the practice from Biblical times, such as Golgotha outside Jerusalem’s walls where Jesus was crucified. Later, inert rubble and ash began to be used to fill marshes and create more developable land, which is how the name “landfills” came into general parlance even though the actual practice soon fell into disuse.


Foul nuisances. With the advent of the automobile at the beginning of the 20th century, the wealthy fled the squalor of the cities for the suburbs, only to find themselves amidst open dumps, such as the “valley of ashes” F. Scott Fitzgerald saw as he took the train back to the City from Long Island and memorialized in The Great Gasby. Demand grew to eliminate the nuisance that open dumps created.

Fresno Sanitary Landfill today

Sanitary landfills. In 1937, Fresno’s legendary Public Works Commissioner Jean Vincenz developed the first systematic attempt to manage the obvious odors, rodents and litter associated with open dumps. Each day, he had the city’s trash compacted and covered in trenches with a few inches of dirt in an attempt to suppress odors, vermin and litter. He called the result “sanitary landfills.” After WWII, this new design, on which the accolade state-of-the-art was first conferred, continued widely in use, with small variations, until the 1980s.

Contaminated drinking water. Heralded by the publication of Rachel Carson’s Silent Spring, the 1960s saw an awakening of environmental consciousness. Much of that concern was directed at contaminated drinking water state-ofthe- art sanitary landfills that leaked pollutants into drinking water supplies.

Natural attenuation. The proponents of landfills attempted to brush these concerns aside, claiming that the underlying soil possessed a capacity to bind with and hold onto contaminants passing through the saturation layer under the landfill. Since there was no shortage of dirt under most sites, this approach also attracted industry’s interest because it cost nothing. “Natural attenuation” was what doing nothing was called, as well as their being designated as the new state-of-the-art facilities.

Superfund listing. Claims for natural attenuation only worked for a short while before running aground when wells adjoining the state-of-the-art landfills were found to be contaminated. The acute publicity that surrounded the disaster at Love Canal only fostered that public perception, even though the Niagra Falls disaster involved buried barrels of toxic chemicals. This untoward denouement eventually forced many of those state-of-the-art facilities onto the Superfund list, including, ignominiously, the award winning, but no longer state-of-the-art, Fresno landfill. Ironically, being censured did not disqualify the site in 2001 from be listed as a National Historic Landmark, although when its concomitant status as a Superfund site came to light, the designation was hastily withdrawn.

Liners. Initially, after natural attenuation was rejected, the industry proposed siting future landfills in areas with clay rich soil, or barring that, by trucking in clay to lay down a lining they claimed would prevent leaks that would contaminate groundwater. But, in 1984, a California legislator demanded Solid Waste Assessment Tests to validate whether clay would really prevent leakage, which found that clay would only slow down leaks for a few years at best. Next, engineers began experimenting with so-called composite geomembrane liners, spread above a twofoot layer of clay-like soil. The typical thin sheeting was made from a plastic called high-densitypolyethylene (HDPE), about the thickness of a credit card – the kind often used on flat roofs of houses. The industry quickly labeled these lined sites, which in 1991 were incorporated into EPA’s first minimum federal standards, as the new state-of-the-art facilities.

Landfill gas explosion
Source: University of Tennessee

Landfill gas explosions. Debilitating though they were, modern landfills’ problems were not confined to groundwater contamination. As early as 1957, technical journals reported that methane had been observed leaking beneath the ground from sanitary landfills, which is something that had not been seen from open dumps. What sanitary landfill developer, Jean Vincenz, had not anticipated was that compacting and covering garbage kept out air, and without oxygen decomposition occurs anaerobically, generating methane rich gas instead of just carbon dioxide and water. As well as migrating underground to nearby dwellings, methane was both explosive and, as later determined, a virulent greenhouse gas. Then, in 1965, a little boy playing next door to the Montebello landfill east of Los Angeles, badly burned himself as he lit a match in small hole he had dug. A later investigation found the accident was due to leaking landfill gas, but the report elicited no reaction from the industry or regulators. Three years after that in the early hours of September 26, 1969, 25 national guardsmen were severely burned when the armory where they were at training in Winston- Salem, North Carolina, suddenly exploded in a giant ball of flames from methane gas produced in a nearby landfill that was ignited by a soldier’s cigarette. For the years that followed, explosions all too regularly rocked adjoining buildings, threatening people’s lives. The annoying smells, vermin and smoke that previously afflicted open dumps – bad though that had been – were now replaced with this all too visible, and violent, threat to life and limb.

LA Sanitation District moved to act. Even though landfill gas explosions could kill people, for the next four years after the near fatal Winston-Salem fireball and nine years after Montebello, the Los Angeles County Sanitary Districts – the premier elite waste management organization in the world – ignored the implications of both those disasters, as well as the little old ladies in their own district who complained about roses wilting near the agency’s Palos Verdes landfill in Rolling Hills Estates, a genteel equestrian community south of LA. Then, late in 1973, the District received a peremptory wake up call. The Covenant Church that adjoined the landfill was blown up. Again, methane was found to have migrated out of the landfill site, eventually finding its way along utility pipe channels to the pilot light in the building’s water heater – by a divine stroke of luck – not when the pews were filled with parishioners. Finally, over next two years, through trial and error, first with interception trenches, and, when that did not work, with extraction piping, the District worked out the essentials for landfill gas collection.

EPA delays action on landfill gas explosions. However, as far as EPA was concerned, no efforts were required to be done to prevent further tragedies, even though in 1975 Congress specifically directed EPA to issue guidance. The agency took four years to officially corroborate that the cause of the Armory explosion laid with methane from the nearby landfill. Then, it did nothing to follow up on that disturbing fact by encouraging changes needed to avoid anymore explosions. In fact, in 1979, a decade after those two dozen troops in North Carolina were almost killed, they blandly observed in passing, still without taking any concrete action, how there appeared to be some sort of connection between its admonitions for landfills to use tighter covers, in an effort to prevent infiltration of precipitation, and an increase in reported explosions. Not until 34 years after the first reports of landfill gas explosions did anything happen. In 1991, EPA promulgated the first minimum federal standards for landfills pursuant to a law that had been enacted in 1984 in reaction to Love Canal. Those rules required monitoring of subsurface methane leaks and actions to prevent it. Fortuitously, but largely through inadvertence, the rules’ requirement for composite liners also acted as a barrier to prevent underground methane excursions if they were installed properly.


Lobbying dominant influence on landfill rules

Resolving the fundamental problems, however, continues to remain elusive, as the cost of actually doing so would price landfilling out of the market relative to its competing alternatives, such as recycling. In the face of lobbying by the waste industry, elected officials’ and regulators’ actions suggest that they are loathe to do that.

coin of the realm

Influence in Washington

The following table summarizes EPA’s rules for groundwater and for air, along with a short summary of the rules’ limitations, with details and documentation provided in the hyperlinks.

Essentially, while the rules were in most cases an improvement over the open dumps that had come before, they largely failed to fulfill the promise to protect public health and the environment contained in the controlling statutes.


Summary of Landfill Rules and their Limitations

Subject Summary of Rule Limitations of Rule
Groundwater Contamination
  • “Nickname” is the “Subtitle D” rules (named after the section where its authority is found in the authorizing statutes, the Hazardous and Solid Waste Amendments of 1984), which was issued by EPA in 1991, and is found at 40 CFR Part 258.
  • The Subtitle D rules establish national minimum landfill standards intended to prevent landfills from leaking and contaminating drinking water supplies, including provisions that provide for–
    • Location restrictions on sites too close to groundwater or close to airports;
    • Design requirement for liners below and above the site and leachate collection lines to extract the garbage juice that drains to the bottom;
    • Operational requirements to minimize nuisances and dumping of hazardous wastes, extract gas and leachate in collection pipes as well as to monitor for leaks;
    • Closure rules intended to seal the site for as long as the liners last; and
    • Postclosure maintenance rules to care for the site for 30 years, and financial assurances to partially cover some long-term liabilities for those 30 years with up-front guarantees.
  • Threat outlasts protections. As EPA recognized, landfills pose a threat for centuries, while the liners are not expected to work longer than a few decades, after which they will fail and release pollutants into the environment. more
  • Leachate line clogs. Beyond liners, unrecognized is the near certainty that the leachate lines, which are mission critical to keep the site from filling up, will clog, sometimes before the site is closed. Leachate, which includes caustics, alkalis and solvents from our discarded household cleaners, will pool over liner instead of being drained off and will degrade, crack or permeate through the liner. more
  • Garbalanches. Even worse than leaks into the groundwater, and also unrecognized, is the greater risk of catastrophic landslides as the covers degrade and the leachate head accumulates. more
  • Reckless exceptions. The rules make exceptions too easy with little oversight. EPA and the states have granted ill-considered exceptions to the rules, such as allowing the burial of industry hazardous wastes like aluminum dross, which can cause intractable landfill fires, and permitted much less effective final covers, which permit much more greenhouse gases to escape. more
  • Taxpayer burden. The financial assurance rules only cover minimally a small part of likely future costs. Just minor maintenance costs are assured – major maintenance and clean ups of site failures are not, and, often, the assurance may consist of little more than a corporate IOU. In the decades ahead, taxpayers will be forced to pay billions of dollars to clean up a second round of failed landfill sites, on the heels of the first round of Superfund sites. more

Subject Summary of Rule Limitations of Rule
VOCs and Methane
  • “Nickname” is the “landfill air rule,” which was issued by EPA in 1996, to comply with the Clean Air Act Amendments of 1990, and is found at 40 CFR Part 60 Subpart WWW.
  • The landfill air rules establish national minimum standards intended to control emissions of landfill gas, nominally focused on the volatile organic compounds that can lead to smog. But, following mounting concerns about climate change since the law’s enactment, attention has become more concentrated on methane, a very potent greenhouse gas comprising about half of the gases emitted from landfills. The rules provide –
    • Coverage. The largest 5% of landfills were covered by the requirement to install some control.
    • Abatement system. Landfill operators are required to install an active gas collection system, but not until after the site has been open for five years. The system is to consist of perforated wells drilled into the landfill, spaced hundreds of feet apart, and connected at the surface to an exhaust system to pull gas. The system must be designed by an engineer, who is hired by the company, but otherwise it does not need to comply with any specific parameters for such a system that the agency found work well.
    • Monitoring. In lieu of prescriptive design requirements, as a check on the system’s performance, the operator is, four times a year, to use an instrument that sniffs for high methane levels about every hundred feet on a grid over the top of the land• fill.
    • Postclosure operation. Continue operating the gas collection system after the site is closed for approximately half of the 30 year postclosure period.
  • Most landfills exempted. 95% of landfills by number, and almost half by tonnage, were exempted from the rule, even though most could have been covered, as they are in Europe, which has no size exemption. more
  • Flexibility abused. The “barn door” wide flexibility EPA granted landfill operators was justified as a means of encouraging innovation. Unfortunately, superior emissions did not materialize.more
  • Inherent design flaw. Vacuum based collection only functions properly when the site is sealed with a cover, which is also when there is too little moisture to generate much gas. Yet, before the cover is installed – and years later after the closed site is abandoned and the cover fails– is when most gas is produced. Then, there is no functioning gas collection. Thus, the systems are inherently inefficient, and most gas escapes. Though some improvements could be made if landfills were restricted in size, EPA has never exhibited any willingness to do so. more
  • Monitoring worthless. The monitoring systems that were required with the intent of showing whether a landfill exhibits good performance do not work on modern landfills. more
  Hazardous Air Pollutants
  • No requirements.
  • Violation of law. EPA illegally ignored its requirement to impose strict abatement requirements on emission sources, like landfills, that emit significant volumes of hazardous air pollutants. more
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