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WASHINGTON INSIGHT

Federal Affairs Waste Management Update

Julia Anastasio, Esq.
Senior Manager of Government Affairs
APWA Washington Office

Over the past year, there have been several developments relating to waste management. If you are interested in more information on any of these topics, please contact Julia Anastasio at janastasio@apwa.net.

Legislative Highlights
Alternative Energy-Related Tax Incentives
Before closing out the final days of the 109th Congress, congressional negotiators completed work on a tax bill that includes numerous environmental and energy-related provisions that affect local agencies.

  • HR 6408 extends and modifies the renewable electricity production credit to 1.9 cent/kWh tax credit. The provision extends the placed-in-service date by one year, through December 31, 2008, for qualifying facilities. Qualifying facilities include: wind facilities; closed loop biomass facilities; open loop biomass facilities; geothermal facilities; small irrigation power facilities; landfill gas facilities; trash combustion facilities; and qualified hydropower facilities.

  • The bill also adds $400 million to the Clean Renewable Energy Bond tax credit. Qualified issuers of the bonds include governmental bodies and mutual or cooperative electric companies. In addition, the bill contains a deduction for energy-efficient commercial buildings by extending the provision allowing a deduction for energy-efficient commercial buildings that cut annual energy and power consumption by 50% compared to the American Society of Heating, Refrigerating and Air Conditioning Engineers Standard for one year.

  • Allow accelerated depreciation for cellulosic biomass ethanol facilities. The provision would allow 50% accelerated depreciation in the year a new cellulosic biomass ethanol facility is placed into service.

  • Finally, the bill makes a technical correction to the tax code so money from the Leaking Underground Storage Tank Fund could be used for purposes listed in the 2005 energy law, including operator training, inspections and release prevention.

The new Congress is also focusing on alternative energy solutions to the nation's dependence on foreign oil. HR 6, Creating Long-Term Energy Alternatives for the Nation (CLEAN Energy) Act of 2007, is designed to reduce our nation's dependency on foreign oil by investing in clean, renewable and alternative energy resources, promoting new emerging energy technologies, developing greater efficiency and creating a Strategic Energy Efficiency and Renewables Reserve to invest in alternative energy. The renewable energy account will be funded with new federal royalties collected by the government and the account would be used to offset the cost of accelerating the use of clean, domestic renewable energy resources; promoting the use of energy-efficient products and practices and conservation; and increasing research, development and deployment of clean renewable energy and technologies. A related bill, S6, National Energy and Environmental Security Act, has been introduced in the Senate outlining the Democrats' comprehensive energy agenda which includes two issues of relevance to public works waste management programs:

  • requiring reductions in emissions of greenhouse gases and

  • diversifying and expanding the use of secure, efficient, and environmentally-friendly energy supplies and technologies.

Senators have indicated that they do not expect to move S6 as one bill package and they estimate that their progress will be slower than that of the House of Representatives in tackling these important issues.

Brownfields

  • The tax incentives passed during the last days of the 109th Congress also included provisions relating to Brownfields development. The legislation allows costs associated with the cleanup of Brownfields to be treated as a tax-deductible business expense. The provision allows petroleum products to be treated as hazardous waste for purposes of a business expense deduction for cleanups.

  • EPA and the Department of Justice recently released a model agreement to encourage cleanup and redevelopment at contaminated sites. The Comprehensive Environmental Response, Compensation and Liability Act model agreement and order on consent for removal action for a bona fide prospective purchaser (BFPP) is intended to serve as the vehicle for providing a federal covenant not to sue and contribution protection as a BFPP. The model agreement is intended for use at sites where there is a federal interest and the work required is complex or significant. The model also includes provisions related to reimbursement of oversight costs, work takeover, and financial responsibility designed to ensure the work is completed in a timely manner. The 2002 Small Business Relief and Brownfield Revitalization Act included provisions limiting liability for persons qualifying as a BFPP if the disposal of hazardous material occurred prior to the purchaser's acquisition and the purchaser made all appropriate inquiries into previous ownership and uses. The model was developed in response to requests from parties performing removal work at sites of federal interest that they own or intend to acquire where EPA may advise on the extent of the necessary remediation. The model agreement is available at http://www.epa.gov/compliance/resources/policies/cleanup/superfund/bfpp-ra-mem.pdf.

  • New Tool Available for Developing and Evaluating Brownfields for Reuse. The Sustainable Management Approaches and Revitalization Tools-electronic (SMARTe) is a web-based decision support system for developing and evaluating future reuse scenarios for potentially contaminated land. This free online tool contains guidance and analysis tools for all aspects of the revitalization process including planning, environmental, economic and social concerns. SMARTe supports evaluation of alternative land reuse scenarios. It does not make decisions but rather it informs the decision makers by providing insights into the complexities of a revitalization and reuse project. SMARTe is partially funded by EPA and is being developed collaboratively with the German Federal Ministry of Education and Research and the Interstate Technology Regulatory Council. Although SMARTe is under development, the current version is available so that users can test it and provide feedback while new information, data, tools and functionality are added. The information, data, and tools were peer reviewed and satisfied the requirements of the Quality Assurance Project Plan prior to release. The site includes extensive opportunities to provide feedback for further development. Visit the SMARTe website at: http://www.smarte.org/smarte/home/index.xml;jsessionid=34dta60sso3sb.

Regulatory Highlights
Over the last year, EPA has issued several final and proposed rules of interest to waste managers:

  • Final Rule: Standards of Performance for New Stationary Sources & Emissions Guidelines for Existing Sources: Other Solid Waste Incineration Units (70 FR 75348 [Dec. 19, 2005]). EPA issued a final rule promulgating new source performance standards and emissions guidelines for new and existing solid waste incineration units. These standards only address the incineration of non-hazardous solid waste. Very small municipal waste combustion units and institutional waste incineration units are covered by the new rule. Effective Date: New Sources: June 16, 2006; Existing Sources: February 14, 2006.

  • Final Rule: Hazardous Waste Management System: Modification of Hazardous Waste Program, Cathode Ray Tubes (71 FR 42928 [Jul. 28, 2006]). EPA issued a final rule to encourage the recycling of cathode ray tubes (CRTs) used in computer monitors and televisions. The final rule would conditionally exclude from federal solid waste regulations intact, used CRTs sent for recycling and processed glass from CRTs. Under the new rule, used broken CRTs are not regulated as hazardous waste as long as the following conditions are met: CRT containers are clearly labeled regarding contents; CRTs are safely transported in containers designed to minimize releases; CRTs are stored in a building or container designed to minimize releases; and CRTs are stored onsite less than one year before being recycled. Other changes require exporters shipping broken or unbroken CRTs to another country for recycling to notify EPA and receive written consent from the receiving country through EPA before shipments can be made. Exporters shipping used, broken CRTs for reuse as computers to another country must submit a one-time notification to EPA. The rule also establishes requirements on speculative accumulation or stockpiling of used, intact, and broken CRTs in anticipation of improved market conditions for these materials. Both broken and intact CRTs are considered to be stockpiled unless 75% of their materials are recycled within a calendar year. Effective Date: January 29, 2007.

  • Final Rule: Update of Continuous Instrumental Test Methods (71 FR 28082 [May 15, 2006]). In 2003, EPA proposed amendments to update five instrumental test methods that are used to measure air pollutant emissions from stationary sources. This notice finalizes those changes and responds to public comments received on the proposal. This final rule is made to improve the methods by simplifying, harmonizing and updating their procedures. Methods 3A, 6C, 7E, 10 and 20 are instrumental procedures used to measure oxygen, carbon dioxide, sulfur dioxide, nitrogen oxides and carbon monoxide in stationary sources. They are prescribed for determining compliance with a number of federal, state, and local regulations. Examples of Regulated Entities: Fossil Fuel Steam Generators; Industrial, Commercial, and Institutional Steam Generating Units; Stationary Gas Turbines; and Municipal Waste Combustors. Effective Date: August 14, 2006.

  • Proposed Rule: NSPS for New/Existing Large Municipal Waste Combustors (70 FR 59402 [Sep. 20, 2005]). EPA issued a notice of proposed rulemaking requiring new source performance standards (NSPS) and emission guidelines for large municipal waste combustion units. The proposal revises the emission limits in the NSPS and emissions guidelines to reflect levels of emission controls installed to meet emission limits set forth in 1995. EPA has indicated that it will publish a supplemental notice seeking comment on the standards. As a result of petitions received from interested stakeholders, the agency will reconsider several technical issues, including: the subcategorization of liquid fuel boilers by heating value; corrections to total chlorine emissions data; certain performance procedures and specifications for particulate matter detection systems; certain analysis to consider multiple hazardous air pollutants that are controlled by a single mechanism; and the dioxin/furan standard for incinerators with dry air pollution control devices. EPA anticipates publication of the supplemental proposed rule in early September.

  • Proposed Rule: Hazardous Waste Management System: Modification of the Hazardous Waste Management System (71 FR 19842 [Apr. 18, 2006]). EPA published notice announcing the development of a national, centralized hazardous waste e-manifest system. The centralized system will include all the necessary applications and components to supply, complete, electrically sign, transmit and retain e-manifests. The system will be funded either in whole or part by user fees.

  • Proposed Rule: Standards of Performance, Emission Guidelines and Federal Plan for MSW Landfills and NESHAP; MSW Landfills (71 FR 53272 [Sept. 8, 2006]). EPA proposed supplemental changes to Landfills NSPS (NSPS), Landfills Emission Guidelines (Emission Guidelines), Landfills NESHAP (NESHAP) and to the Landfills Federal Plan (Federal Plan). These are supplemental amendments to amendments proposed in May 2002. The new proposal to the landfills NSPS clarifies what constitutes treated landfill gas, and clarifies who is responsible for compliance activities where multiple parties are involved in the ownership or operation of a landfill gas collection, control and/or treatment system. The agency is also proposing changes to Startup, Shutdown, Malfunction and Routine Maintenance (SSM) procedures. Note: Proposed amendments to the NSPS also serve to amend the Emission Guidelines, and the Federal Plan for existing MSW landfills because these rules incorporate the provisions of the standards of performance for MSW landfills.

Recycling
EPA recently released the Municipal Solid Waste in the United States: 2005 Facts & Figures biennial report which shows that Americans recycled 32% of the nation's solid waste last year, up slightly from 31.4% in 2004. As a nation, Americans generated almost 246 million tons of municipal solid waste last year, representing a decrease of nearly two million tons from the previous year. The decrease is due in part to the decline in industrial waste generation to about 4.5 pounds per person per day. This is a 1.5% decrease from 2004. The decrease in individual waste generation was also influenced by increases in recycling rates. In 2005, Americans recycled 58.4 million tons of waste or 1.5 pounds per person per day, up 1.2 million tons from 2004. The report also found that container and packaging recycling increased to 40%, nearly 62% of yard waste was composted and about 42 million tons of paper were recycled. The amount of waste sent to landfills was also down slightly and an estimated 33.4 million tons, or 13.6% of the waste total, was used to generate energy in 2005, down from 2004. The report is available at http://www.epa.gov/msw/msw99.htm.

Additionally, EPA is touting the success of a voluntary partnership among EPA and electronics manufacturers and retailers, Plug-In Program, to help customers donate or recycle their used electronic devices. Since 2003, Plug-In Partners have recycled more than 95 million pounds of electronics. EPA estimates that last year's recycling efforts under this program collectively saved enough energy to power more than 7,000 homes and prevented greenhouse gas emissions equivalent to the annual emissions of 12,000 cars. The report is available at http://www.epa.gov/epaoswer/osw/conserve/plugin/pdf/activ-06.pdf.

Supreme Court
The United States Supreme Court recently heard oral arguments on whether flow control ordinances requiring the delivery of local solid waste to a publicly-owned processing facility violates the commerce clause of the U.S. Constitution. United Haulers Ass'n v. Oneida-Herkimer Waste Management Authority. The Court is reviewing a decision issued by the U.S. Court of Appeals for the Second Circuit that held that the two ordinances in question did not facially discriminate against interstate commerce and that any burden imposed by the ordinances on interstate commerce was insubstantial and not excessive in relation to the local benefits received as a result of the ordinances in question, and therefore did not violate the commerce clause. Interested stakeholders and court watchers are expecting the decision to provide guidance to local governments, waste haulers, and others involved in waste management. A decision is expected by June 2007.

Julia Anastasio can be reached at (202) 218-6750 or janastasio@apwa.net.