Local Enforcement Agency Correspondence

Board Meeting June 24, 1998 Agenda Item 60

Item:

Update and Consideration by Board Members on the Department of Toxics Substances Control (DTSC) Regulatory Structure Update (RSU) Waste Classification Project.

I. Summary

The Department of Toxic Substances Control (DTSC) is currently undertaking a major effort, the Regulatory Structure Update (RSU), to streamline and reduce the regulatory burden of the California-only hazardous waste program. A major component of this effort is the proposal to change the current hazardous waste classification system. DTSC is proposing to revise the system into two tiers. The higher-risk tier would continue to be fully regulated by DTSC as hazardous waste. The lower-risk tier, called Special Waste, would still be considered hazardous waste and would continue to be regulated by DTSC; however, it would be subject to fewer management requirements. Disposal of fully hazardous waste and Special Waste would be at a Class I Hazardous Waste facility, unless DTSC issues a variance for disposal at a Class II or III solid waste landfill. Disposal at the Class II or III landfill would be dependent on Regional Water Quality Control Board (RWQCB) authorization. Disposal would also need to be in agreement with the Solid Waste Facilities Permit (SWFP), conditional use permit (CUP), and CEQA.

Currently, Special Waste and fully hazardous waste can be disposed in a Class II or III landfill that has been issued a variance by DTSC and authorized by the RWQCB. The major difference between the current practice and DTSC’s proposal is that a much broader range of hazardous waste would qualify as Special Waste. DTSC estimates that 5,743 tons of Special Waste are currently eligible for disposal annually in solid waste landfills. The proposal would increase this amount to approximately 341,000 tons annually, or from 1% of the current hazardous wastestream to 59% of the hazardous wastestream. DTSC has not provided any volumes for the amount of fully hazardous waste disposed annually in Class II/III landfills via variances, but indicates the numbers would be small.

The proposal would also shift approximately 130,206 tons of hazardous waste disposed annually to the nonhazardous waste status and 127,689 tons of nonhazardous waste disposed annually to the hazardous waste status. The types of wastes becoming hazardous would primarily be in the form of ashes, sludges, and soils.

These changes pose serious implications to the management of solid waste landfills. The purpose of this agenda item is to bring forward for consideration by the California Integrated Waste Management Board (Board) proposed staff recommendations on continued Board involvement with DTSC on the RSU Waste Classification proposal.

II. Previous (Board or Committee) Action

This item is being brought before the Board for the first time.

III. Options for the Board or Committee

Board Members may decide to:

1. Approve the staff recommendation on continued Board involvement with DTSC on the RSU Waste Classification proposal.
2. Approve a portion of the staff recommendation and provide staff with guidance on the remaining portions of the staff recommendation.
3. Take no action.

IV. Staff Recommendation

Staff recommends Option #1; that the Board approve the staff recommendation on continued Board involvement with DTSC on the RSU Waste Classification proposal.

V. Analysis

Background:

The Department of Toxic Substances Control (DTSC) is currently undertaking a major effort, the Regulatory Structure Update (RSU), to streamline and reduce the regulatory burden of the California-only hazardous waste program. The RSU was initiated in July 1995 and was expected to end in July 1997; however, the end date has been extended out to beyond 1998 because of controversy experienced by DTSC over recommended changes to the existing hazardous waste system.

A major component of this effort is the proposal to change the current hazardous waste classification system. The changes proposed by DTSC have been met with controversy and DTSC has made several significant revisions to the proposal since November 1997. However, the proposal continues to be a two-tier hazardous waste system with the lesser-risk tier eligible for disposal at a Class II/III landfill. As the proposal stands today, it would make the following significant changes to the current hazardous waste classification system:

• Creation of a two-tier system consisting of higher-risk, fully regulated hazardous waste and lower-risk hazardous waste (Special Waste). This two-tier system would be derived from new, risk-based, multi-pathway thresholds.
  
• Replacement of the Waste Extraction Test (WET) with the federal Toxicity Characteristic Leaching Procedure (TCLP) in determining if a waste is hazardous or nonhazardous based on solubility thresholds.

This current proposal was presented by the Director of DTSC to the Board at its May 14, 1998 Special Workshop on DTSC’s Hazardous Waste Classification Proposal. Since the workshop, a consultant for DTSC, who is developing the estimated costs associated with the proposed hazardous waste classification system, has estimated the following tonnages associated with shifts in the hazardous wastestream:

• The amount of fully hazardous waste disposed annually in a Class I landfill would be reduced from 574,353 tons to 236,337 tons.
  
• The amount of Special Waste eligible for disposal annually in a Class II/III landfill would increase from 5,743 tons to 341,242 tons.
  
• Approximately 127,689 tons of nonhazardous waste disposed annually would become fully hazardous waste (estimated at 91,485 tons) and Special Waste (estimated at 36,204 tons).
  
• Approximately 130,206 tons of hazardous waste disposed annually would become nonhazardous.

In an attempt to determine which Class II/III landfills could currently receive hazardous waste via a variance, the State Water Resources Control Board (SWRCB) has recently reviewed the Waste Discharge Requirements (WDRs) for Class II landfills and 19 Class III landfills that could possibly accept this waste. For the 11 Class II landfills, 7 have WDRs that do not limit the operator’s acceptance of designated waste; 4 have WDRs that are limited to specific wastestreams and their WDRs would either need to be revised or new WDRs issued. For the 19 Class III landfills, the WDRs for these landfills limit in some manner the ability of the operator to accept hazardous waste and would need to be reviewed and revised, or new WDRs issued. Board staff is currently reviewing the SWFPs for these same Class II/III landfills to determine which could currently receive hazardous waste via a variance and which would require a revision to their SWFP to accept the waste.

DTSC has indicated the following partial schedule for development of the waste classification regulations:

Key Issues:

1. Volumes of fully hazardous waste and Special Waste that could potentially be disposed in Class II/III solid waste landfills are still uncertain. The increase in Special Waste from 5,743 tons to 340,611 tons would be a significant increase in the volume of waste eligible for disposal via a variance in a Class II/III landfill. The impact of this increase would be even more significant if only a few solid waste landfills were to receive a variance. DTSC has not provided any volumes for the amount of fully hazardous waste currently disposed in Class II/III landfills via variances or that could potentially be disposed, but indicates that the numbers would be small.
   
2. Process used for issuing variance unclear. Variances are currently issued out of DTSC’s headquarters’ units; however, this practice could change in the future so that variances are issued by DTSC’s regional offices. According to DTSC, only half a dozen variances have been issued in the last five years. It appears that the RWQCB, Board/Local Enforcement Agency (LEA), and DTSC do not currently collaborate in the determination of what fully hazardous waste or Special Waste can be received by a particular landfill. Nor do they collaborate on the management standards and operating conditions required for a landfill to receive fully hazardous waste or Special Waste. It appears that each works independently of the other and LEAs are not always aware of a variance being issued. It is also unclear if a variance is always wastestream and generator specific, or if it could be broader and include more than one generator or type of waste.
   
3. Criteria used by DTSC in determining which landfills can receive fully hazardous waste or Special Waste via a variance are not clearly defined in statute, regulation, or guidance, nor are any other conditions, limitations, or other requirements. Since variances could be issued out of DTSC’s regional offices and headquarters’ units, this could lead to inconsistency in the issuance of variances statewide and the possibility that the waste could be inadequately managed for the protection of human health and safety, and the environment. This issue becomes even more significant when considering the projected increase in Special Waste that could potentially be disposed in Class II/III landfills.
   
4. Enforcement of the proper waste classification of fully hazardous waste and Special Waste, and variance conditions, limitations, and other requirements is unclear. DTSC has indicated that they will be responsible for enforcement of waste classification and variance conditions; however, how they will achieve this is unclear. The frequency of record review and inspections is unknown. This could result in fully hazardous waste and Special Waste being inadequately managed for the protection of human health and safety, and the environment at a solid waste landfill. The Board would regulate management of the Class II/III landfill, but not specific concerns related to the hazardous waste itself.
   
5. Landfill operators may not discern that nonhazardous waste is now hazardous. Soils, ashes, and sludges that are currently classified as nonhazardous may become hazardous under DTSC’s proposed changes. It is unclear how operators of Class II/III landfills will know that formerly nonhazardous waste is now hazardous and subject to restricted handling standards. This is especially a concern when considering that testing for some of the new low thresholds may be costly and not readily pursued.
   
6. The Board and SWRCB will not receive a fee for disposal of fully hazardous waste or Special Waste at solid waste landfills, even though there will be an additional workload for the Board and SWRCB resulting from increased operational complexity. This is especially a concern for the increased tonnages expected from Special Waste. Because Special Waste is still classified as hazardous waste, only DTSC can currently receive a disposal fee.
   
7. Unknown and increasing quantities of nonhazardous waste could be disposed in solid waste landfills, thereby affecting diversion rates. This would be waste that would shift from hazardous to nonhazardous with the proposed changes to the waste classification system. While the Board has authority to approve an adjustment so that the new waste does not count towards diversion (PRC section 4178(a)), there is no mechanism for determining the amounts that would need to be adjusted at the jurisdictional level. The Board could only determine the total statewide amount of "new" nonhazardous waste from DTSC information, which is currently estimated at 130,000 tons. At this time, it is thought that much of this waste could be soils, which by their weight would have a greater impact on the disposal rate than would other, lighter types of waste.
   
8. The status of "new" nonhazardous waste could change back to hazardous if DTSC were to decide to pursue new solubility thresholds. DTSC had proposed new solubility thresholds for determining hazardous waste (Soluble or Extractable Regulatory Thresholds – SERTs), but removed these for further study from the waste classification proposal because of controversy associated with the methodology. Instead, DTSC has proposed that the original solubility thresholds (Soluble Threshold Limit Concentrations – STLCs) continue to be used, but with a different testing procedure. Under this change, some wastes, such as inorganic toxic metals and lead-containing wastes, could qualify as nonhazardous. Should DTSC later pursue new solubility thresholds that are similar to the SERTs, the status of some nonhazardous wastes could change back to hazardous. This could create a regulatory burden on both the regulated community as well as on regulators. Diversion of this waste could become very difficult since there would be uncertainty about its future status as a nonhazardous waste. It also raises the question if it would be appropriate for the Board to encourage diversion of a nonhazardous waste that could become hazardous in a few years.

Staff Recommendation on continued Board involvement with DTSC on the RSU Waste Classification proposal:

Overall, the Board should continue working closely with DTSC throughout the remainder of the RSU Waste Classification process to better understand the proposal and its potential impacts to the Board’s programs, and to provide DTSC with critical feedback on solid waste management issues and concerns. Based on DTSC’s current proposal and the key issues identified above, staff recommends that the Board pursue the following:

1. The Board/LEAs, SWRCB/RWQCBs, and DTSC should collaborate in the development of an overall process that would include early consultation of the Board/LEA and SWRCB/RWQCBs by DTSC in determining the issuance of a variance to a solid waste landfill for receipt of fully hazardous waste or Special Waste. The process could be formalized via an MOU or guidance. This could include limiting the issuance of a variance to landfills whose WDRs, SWFP, CUP, and CEQA determination are in agreement.
   
2. The Board/LEAs, SWRCB/RWQCBs, and DTSC should collaborate in the development of general criteria that would be used by DTSC in determining which landfills can receive fully hazardous waste or Special Waste, and in the development of model terms and conditions for possible inclusion in a variance. This could include consideration by DTSC of operational aspects identified by a LEA at a potential solid waste landfill. The criteria and model could be clearly defined in an MOU or guidance.
   
3. In developing the overall variance process, the Board should pursue including a requirement that DTSC consult with the appropriate LEA before issuing a variance at a specific landfill. This would provide DTSC with information on current conditions and operational activities at the landfill. This could include activities such as the need to store fully hazardous waste or Special Waste prior to disposal or the possibility of using fully hazardous waste or Special Waste as Alternative Daily Cover. It could also include conditions such as a large presence of organic waste in the landfill that could result in greater emissions.
   
4. The Board/LEAs, SWRCB/RWQCBs, and DTSC should collaborate on the level of enforcement necessary at a solid waste landfill receiving fully hazardous waste or Special Waste to ensure adequate protection of human health and safety, and the environment. This could include the frequency of record reviews and inspections of variance conditions by DTSC.
   
5. The Board/LEAs should work closely with DTSC in developing a training program that would instruct landfill operators in recognizing new categories of hazardous waste, such as soils, ashes, and sludges.
   
6. The Board, SWRCB, and DTSC should collaborate in the development of an equitable fee schedule, so that all parties receive appropriate funding for the services being provided.
   
7. The Board should work closely with DTSC to determine a better understanding of the volume of wastes that could become nonhazardous and make clear to DTSC that AB 939 diversion goals could be impacted. This information could be included in DTSC’s Economic and Fiscal Impact Analysis, CEQA evaluation, and rulemaking process.
   
8. The Board should work closely with DTSC on Board/LEA regulatory concerns associated with "new" nonhazardous waste possibly becoming hazardous at a later date, should DTSC later decide to pursue new solubility thresholds.

Fiscal Impacts:

The Board and SWRCB will not receive a fee for disposal of fully hazardous waste or Special Waste at solid waste landfills, even though there will be an additional workload for the Board and SWRCB resulting from increased operational complexity. This is especially a concern for the increased tonnages expected from Special Waste. Because Special Waste is still classified as hazardous waste, only DTSC can currently receive a disposal fee.

At this time, it appears that there will be minimal impact on the Board’s disposal fee revenues for changes to the status of nonhazardous waste. DTSC currently estimates that the amount of nonhazardous waste becoming hazardous balances the amount of hazardous waste becoming nonhazardous.

VI. Funding Information

No funds currently identified.

Amount Proposed to Fund Item: $

Fund Source:

Proposed From Line Item:

Redirection:

If Redirection of Funds: $

Fund Source:

Line Item:

VII. Attachments

Attachment 1 – Resolution 98-209

California Integrated Waste Management Board

Resolution 98-209

Update and Consideration by Board Members on the Department of Toxic Substances Control (DTSC) Regulatory Structure Update (RSU) Waste Classification Project

Whereas, the Department of Toxic Substances Control (DTSC) is proposing a major change to the current California-only hazardous waste classification system as part of the Regulatory Structure Update (RSU) that poses serious implications to the management of solid waste landfills; and

Whereas, the changes proposed to the waste classification system would increase the amount of lower-risk hazardous waste (Special Waste) eligible for disposal in a Class II/III landfill issued a variance from 5,743 tons annually to 341,242 tons, or from 1% to 59% of the hazardous wastestream; and

Whereas, the current variance process is unclear and does not appear to include the Board or local enforcement agencies in the assessment of what hazardous waste can be received by a particular landfill, and what management standards and operating conditions would be required; and

Whereas, DTSC estimates that 127,689 tons of nonhazardous waste disposed annually would become hazardous, and the waste would primarily be in the form of ashes, sludges, and soils, which could prove difficult for landfill operators to recognize as now hazardous; and

Whereas, DTSC estimates that 130,000 tons of hazardous waste disposed annually would become nonhazardous and could be disposed in Class II/III landfills, which could affect diversion rates since there is no mechanism for determining the amounts that would need to be adjusted by the Board at the jurisdictional level.

Now, Therefore, Be It Resolved that the Board approves and adopts the staff recommendation contained in Agenda Item number 60 on continued Board involvement with DTSC on the RSU waste classification proposal.

Certification

The undersigned Executive Director, or his designee, of the California Integrated Waste Management Board does hereby certify that the foregoing is a full, true, and correct copy of a resolution duly and regularly adopted at a meeting of the California Integrated Waste Management Board held on June 24, 1998.

Dated: June 24, 1998

Original signed by:

Ralph E. Chandler
Executive Director

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