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To: Members & Affiliates
From: National Office
Date: April 30, 1998
Re: RA 98-9

Concerns With EPA's Final Municipal Settlement Policy

On February 18, 1998, EPA released its final Policy for Municipality and Municipal Solid Waste; CERCLA Settlements at National Priorities List (NPL) Co-Disposal Sites. The policy describes the methodology for calculating appropriate settlement contributions for municipal owner/operators and generators/transporters of municipal sewage sludge (MSS) and municipal solid waste at co-disposal landfills under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Of the approximately 250 landfills on the NPL, municipal co-disposal landfills comprised some 23% or 60 of the sites on the NPL. Many of these landfills are or were owned or operated by municipalities in connection with their sanitation and trash disposal services to the community prior to state or federal clean water acts which require pretreatment of industrial wastewater. Under EPA's final Municipal Solid Waste Settlement Policy, a party that contributed municipal solid waste can settle its liability with EPA based on a $5.30 per ton unit cost methodology that is based generally on costs of closure/post-closure activities at facilities regulated under Subtitle D of the Resource Conservation and Recovery Act (RCRA). EPA does not have a similar allocation approach to calculate wastes which are excluded from the policy.

In the draft policy dated July 11, 1997, sewage sludge was included in the definition of municipal solid waste and defined as "any solid, semi-solid, or liquid residual removed during the treatment of municipal wastewater or domestic sludge. For purposes of that proposal, municipal solid waste and municipal sewage sludge are collectively referred to as MSW; all other wastes and substances are referred to as non-MSW." AMSA commented in support of this proposal and the cap on municipal liability during the public comment period. The final policy issued in February 1998, however, contained the following change: "For purposes of this policy, municipal solid waste and municipal sewage sludge are collectively referred to as MSW; all other wastes and materials containing hazardous substances are referred to as non-MSW. Municipal sewage sludge means any solid, semi-solid, or liquid residual removed during the treatment of municipal waste water or domestic sewage sludge, but does not include sewage sludge containing residuals removed during the treatment of waste water from manufacturing or processing operations."
AMSA is concerned that EPA enforcement officials may interpret the current definition to exclude from the policy any municipal POTW sewage sludges (biosolids) derived from industrial discharges into the POTW. In March, AMSA met with officials from EPA's Office of Site Remediation Enforcement who acknowledged that the policy's language is broader than they intended. Based on these discussions, EPA stated that their intent in the municipal settlement policy is as follows:
  • The policy does not cover industrial sludges;
  • The policy does cover the vast majority of municipal sewage sludges; and,
  • The policy gives EPA discretion on a case-by-case basis to evaluate whether the policy applies to POTWs that have received significant industrial wastes that were sent to co-disposal landfills (that have since been designated as a Superfund site) prior to the advent of pretreatment program requirements of the early 1970s.
The intent of the municipal settlement policy is to expeditiously settle municipal co-disposal site liability issues. AMSA members that have disposed pre-pretreatment sewage sludges containing significant industrial residues to any of the approximately 60 co-disposal NPL landfill sites are cautioned that the liability cap may not apply to their agency until EPA makes an evaluation of the circumstances. Agencies that disposed of their sewage sludges at these co-disposal landfills that contained mostly domestic wastes are expected to be covered under the policy.

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