Local Enforcement Agency Correspondence

Regulatory Structure Update Non-RCRA Hazardous Waste Classification Proposal–Key Areas of Concern Identified by Board

Thank you for extending an invitation to work with the Integrated Waste Management Board (Board) on the hazardous waste classification proposal. We appreciate your commitment to continue to work with us to ensure that our concerns and those of our constituents are addressed. Because the proposal and its supporting documentation continue to change, we have had a difficult time in determining potential impacts to the Board’s programs. We have, at this time, identified several key areas of concern that were discussed at our June 24, 1998 Board Meeting. These are as follows:

• Volumes of fully hazardous waste and Special Waste that could potentially be disposed in Class II/III solid waste landfills via a variance are still uncertain. Current estimates indicate that the amount of Special Waste could increase from one percent of the hazardous wastestream to almost 60 percent. We understand that very few variances have been issued in the past, however, we are concerned that the increase in Special Waste could result in greater pressure to issue more variances at solid waste landfills.
  
• The process used for issuing a variance does not appear to include early collaboration with the Board and Local Enforcement Agencies (LEAs) so that current conditions and operational activities at a specific landfill are taken into consideration at the time a variance is being considered. The trailer bill language proposed by the Department of Toxic Substances Control (DTSC) will not address this concern. The Board would only be consulted if the variance were to conflict with Title 27 of the CCR and only for Class III landfills. It would not provide for early consultation with the Board/LEAs on every variance for disposal at a solid waste landfill prior to issuance by DTSC.
  
  As a side note, as written, the proposed trailer bill language might be interpreted to allow the Board to concur in variance conditions that conflict with Title 27 rather than requiring the variance to conform with Title 27. Also, it is unclear why the Board would be required to be part of a joint regulation process. At this point in time, it is not clear what Board regulations would be needed since Special Waste is wholly within DTSC jurisdiction.
  
• It is unclear how DTSC will achieve enforcement of the proper waste classification of fully hazardous waste and Special Waste, and variance conditions at a solid waste landfill. For example, what will be the frequency of record review and inspection of variance conditions by DTSC?
  
• Landfill operators may not easily discern that what has traditionally been nonhazardous waste is now hazardous, especially since these wastes will be in the form of ashes, sludges, and soils, and the testing for some of the new thresholds may be costly and not readily pursued.
  
• The Board and State Water Resources Control Board (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 resulting from increased operational complexity.
  
• Unknown and increasing quantities of nonhazardous waste, which was formally hazardous waste, could be disposed in solid waste landfills, thereby affecting diversion rates if the disposal was limited to a few landfills. While the Board has authority to approve an adjustment so that the new waste does not count towards diversion, there is no mechanism for determining the amounts that would need to be adjusted at the jurisdictional level. Also, a jurisdiction may not be able to readily document the impact.
  
• The status of "new" nonhazardous waste could change back to hazardous in a few years if DTSC were to decide to pursue new solubility thresholds, creating a regulatory burden on both the regulated community as well as on regulators.

Based on discussions at last week’s Board Meeting, the Board adopted the following recommendations to resolve its current concerns with the hazardous 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. This could include future special workshops similar to the one held by the Board on May 14, 1998.
  
• The Board/LEAs, SWRCB/RWQCBs, and DTSC should collaborate in the development of an overall variance process that would include early consultation of the Board/LEAs and SWRCB/RWQCBs by DTSC. This could include limiting the issuance of a variance to landfills whose WDRs, SWFP, CUP, and CEQA determination are in agreement. The collaborated process should also include the development of general criteria that would be used by DTSC in determining which landfills can receive hazardous waste, and in the development of model terms and conditions for possible inclusion in a variance. The collaborated process should be formalized via regulations, an MOU, or guidance document.
  
• 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.
  
• 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.
  
• 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.
  
• The Board should work closely with DTSC to determine a better understanding of the volume and types of wastes that could become nonhazardous, and to make clear to DTSC that AB 939 diversion goals could be impacted depending on the number of landfills that would receive the waste. Depending on the volume and types of waste identified, the information regarding diversion goal impacts could be included in DTSC’s Economic and Fiscal Impact Analysis, CEQA evaluation, and rulemaking process.
  
• 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.

We look forward to working with you and your staff in resolving our concerns. We suggest that the establishment of a work group might be a good approach for reaching satisfactory conclusion on some of our concerns. At the same time, Board staff is pulling together comments on the Notice of Preparation, draft Economic Impact Study, and the proposed draft management standards for special waste. Staff will also continue to provide input to your staff upon request.

If you have any questions or need further information, please contact Rubia E. Packard at 341-6289.

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