This looks to be a helpful amendment considering what is going on with the Shoosmith Landfill in Chesterfield, Virginia. 

I am a firm believer in the Strong Towns ethos that larger projects should bear a larger burden of costs; landfills are massive investments, and thus should be required to put away similarly sized amounts of funding to ensure their safety should the operator experience issues like bankruptcy. By requiring additional funding stores, the taxpayer is shielded from acting as the safety net for corporate profits. 

Existing financial assurance mechanisms under 9VAC20-70 have proven inadequate to ensure owners and operators fulfill proper closure and post-closure requirements of landfills across the Commonwealth. Corrective action of permitted and unpermitted waste sites is paid by the taxpayers when these financial assurance mechanisms fail and owners are insolvent, whether through federal Superfund or through General Assembly via budget amendment.

A variety of financial assurance mechanisms exist for owners and operators to fulfill their statutory requirements. States are authorized to implement their own financial assurance mechanisms, as described more fully in 40 CFR 258.74 (i). Virginia is approved to implement its solid waste program. Virginia DEQ and the Virginia Waste Management Board should convene a Regulatory Action Panel to consider the practicability of developing a more robust financial assurance mechanism to serve as a backstop. Increasing the existing requirements and coverages under 9VAC20-70 only moves the underlying problems into the future.

Similar “pooled” financial assurance mechanisms are used successfully within DEQ programs and across the Commonwealth, as seen in unemployment insurance and worker’s compensation. DEQ and the Board should consider the option of becoming an “insurer of last resort” for corrective actions of permitted and unpermitted waste cleanups across the Commonwealth. The Virginia Occupational Safety and Health Program is convening a RAP for their heat-stress standard, and provides a good mechanism for interested parties to nominate panel members for the agency to review.

The recent facility abandonment identified by DEQ demonstrates the importance of maintaining adequate and accessible financial assurance. At the same time, regulatory amendments should be targeted to the deficiencies that caused or contributed to that circumstance and should not impose unnecessarily conservative or duplicative requirements on compliant facilities.

Where DEQ is concerned about abandonment risk, enhanced requirements should focus on indicators such as repeated noncompliance, failure to update financial assurance, deteriorating financial condition, loss of a treatment outlet, inactive or abandoned status, or failure to perform required closure work. Compliant operating facilities should not automatically be subjected to assumptions or requirements developed for distressed or abandoned facilities.

The revised cost-estimate process should be site-specific, risk-based, and consistent with conventional construction estimating practices. DEQ should identify the cost categories that must be evaluated while allowing owners and operators to use documented quantities, recent bids, actual contracts, local market data, published cost information, and professional engineering judgment. A rigid statewide worksheet or mandatory unit-cost schedule could produce estimates that do not reflect actual facility conditions. Site-specific estimates should therefore control because closure costs vary based on final-cover design, material availability, haul distance, topography, existing infrastructure, previously closed acreage, and regional construction conditions.

For leachate management, cost estimates should be based on the management method authorized by the facility’s permit. Leachate quantities should be estimated using representative site-specific data, including actual flow records, acreage and cover conditions, precipitation, operational history, and the expected effects of final closure. Statewide default values may be appropriate where adequate site-specific data are unavailable, but facilities should be permitted to demonstrate alternative quantities through documented engineering analyses. Peak active-life leachate generation should not automatically be assumed for every year of the post-closure period.

DEQ should also avoid unnecessarily narrowing the mechanisms available to demonstrate financial assurance. Financially sound options such as bonds, letters of credit, insurance, trust funds, and applicable financial tests should be retained, subject to reasonable safeguards. The regulations should preserve an appropriate range of financial-assurance mechanisms while focusing enhanced requirements on facilities presenting demonstrated financial, operational, or compliance risks.

More broadly, DEQ should consider directing regulatory resources toward field inspection, construction compliance, operational oversight, and enforcement, where environmental impacts are more likely to occur, rather than expanding regulatory requirements for compliant facilities.

A few years back I participated in a group that was trying to get state tipping fees in place for Virginia.  I forget the reason why, but the recommendation never did make if before the General Assembly.  Placing a required per ton State tipping fee on all garbage might be a good starting point.  For example, the fee could be $5 or $10 per ton, with all the funds being deposited in a fund set aside for situations like the Shoosmith one in Chesterfield.  This way, funds in this account would be used prior to asking the tax payers to pay it.  The $10.6 million for Shoosmith is just the tip of the iceberg. 

A better job needs to be done of vetting the financial status of these companies before they are permitted to start up, this includes parent corporations.  Too often it is found that companies operating this type of business are actually owned by people in foreign countries.  Then this brings into question, what legal actions can a State take against a company in a foreign country.  Review their backgrounds and especially their changes in key personal and financial status and determine if they are heavily leveraged. 

DEQ needs to be more effective with their monitoring process and follow-up as it is amazing that the weaknesses at Soosmith were found by the County personnel and not DEQ.  Just think how many people could be hired by DEQ to complete necessary monitoring with $10.6 million.  Perhaps DEQ needs to test wells outside landfill sites and not just within the boundaries.

A large non-revocable cash bond of $250 - $500 millon is reasonable in these types of projects where there are so many outs the companies can take and it is left up to the taxpayers to carry the burden. 

I live in Cumberland, VA with a proposed landfill looming.  Our citizen's health, our environmental health and financial welfare should not be compromised and exploited for financial gain from the landfill owners.  It defies logic that tons of trash and toxic material can be heaped on a thin liner and there will not be environmental consequences and expensive remediation.  Citizens and taxpayers should not be financially responsible for the obvious detrimental results of landfills.  Quality of life and environmental ramifications are already too high price for the landfill owner"s avarice.  Make them accountable for the closing costs and all other landfill related costs upfront.  Shoosmith landfill is Chesterfield County is projected to cost $173 million dollars for proper closure and incalculable citizen health and environmental costs.  Make the landfill owners pay now and in the future upfront.  They will all declare bankruptcy if given the opportunity.  Our taxpayers should not have to financially  clean up their predictable trash.