Why Illinois Municipalities Should Look
at Regional Solid Waste Management

By SANFORD M. STEIN, Partner,
Gordon & Glickson, P.C., Chicago
and
JEANNE F. BECKER, Consultant,
Waste and Environmental Planning, Lake County

Today, some Illinois areas are looking at a regional approach for "solid waste management" to protect the health of their people, the integrity of their ground water and other resources.

We think they're pursuing a far-sighted course.

The past disposal of domestic and industrial garbage in poorly regulated landfills has created a vast national problem. Landfill operators, private haulers or corporations have been the defendants in much of the environmental litigation with widespread notoriety. We maintain that municipalities will increasingly be held responsible for future solid waste-related legal problems from residential and commercial disposal within their jurisdictions.

Today under the Resource Conservation and Reclamation Act (RCRA), enacted in 1976, and under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), better known as "Superfund," the groundwork is established for stringent regulation of solid and hazardous waste disposal and cleanup. CERCLA classifies a municipality as a "person," with liabilities similar to corporations, private haulers and other commercial enterprises. Currently, the municipality is potentially liable in cases where it is a transporter, generator of hazardous waste through the operation of its own services (such as through operation of vehicles), and as a landfill and other disposal site operator.

Further, although not currently enacted into law, we believe that environmental statutes will be interpreted or further amended in the future to hold municipalities responsible in even broader areas — including the failure or misdeeds of private haulers licensed by municipalities.

Traditionally waste disposal in Illinois has been the province of private industry. At least one-half of the municipalities in Illinois have not directed licensing or oversight in refuse collection. Many other municipalities contract with or license private waste haulers to handle wastes within their jurisdictions.

These municipalities, even though they may currently be avoiding some of the potential liability under CERCLA and RCRA, may find themselves in difficulty in the near or distant future, should problems arise in landfills owned by municipalities or from waste generated by municipalities.

That there is a trend in that direction is evidenced in several cases including the infamous "Love Canal" litigation in which Niagra County, New York was one of several defendants. In the early 80s, both Jackson Township, New Jersey and the Jackson Township Municipal Utilities Authority were sued by residents of a certain section of the township. The unhappy residents claimed that Jackson Township's acquisition of a landfill was negligent in the selection of the site and the design and maintenance of the landfill. It was further claimed that the alleged negligence resulted in the seepage of pollutants into the aquifer, causing contamination of the residents' ground water. The charges claim the township should have known the liquid waste deposited there would leach through to groundwater supplies.

These types of cases in the federal courts will increase dramatically as lawsuits brought under CERCLA and RCRA work up through the system. According to the regional office of the Environmental Protection Agency in Chicago, municipalities are frequently the defendants in Superfund cases.

In order to protect themselves, municipalities have several options.

They can try to avoid liability by continuing to rely upon the private haulers and private landfill operators to behave responsibly and in compliance with increasingly complex regulations. There is risk in this approach however. Unsophisticated or unprincipled waste haulers and disposers may prey upon the community and

June 1986 / Illinois Municipal Review / Page 9

expose the community's residents and businesses to liability.

An individual municipality can establish its own solid waste disposal agency. If the community is large enough, it may be able to bear the costs of establishing an environmentally safe and cost effective waste collection and disposal system. However, shortages of resources in land — for landfills — in cash — for new plants — and bonding ability — can hinder most municipalities from effectively operating an efficient program. Further, failure to meet state and Federal regulations may expose the municipal government to greater liability.

Or the municipality can, with its municipal neighbors, establish a regional waste disposal system, whereby communities pool their resources to provide for efficient disposal and compliance with standards and regulations. Samples of successful regional approaches are evident in various parts of the United States already.

In the northeast, the Northeast Maryland Waste Disposal Authority is a regional coordinating agency and financing vehicle for a resource recovery program covering the City of Baltimore, Baltimore County, Anne Arundel County and Harford County. In this case, in response to a garbage "crisis," the four jurisdictions combined resources and used the Authority to help finance a new 2250-ton-per-day cogeneration mass burning energy plant. It is the first of several solid waste facilities to be sponsored by the regional agency.

Another model in densely populated Pinellas County, Florida, is a successful refuse-to-energy plant which started operation in 1983. There, the 24 municipalities did not have enough land for landfills to meet the growing disposal problems. With the strength of the County's ability to sell bonds, however, the municipalities created a mass burning water wall steam turbine electricity generating incinerator. The electricity that is sold to the local utility, in combination with the tipping fees collected, pay the ongoing operating cost of the plant.

Here in Illinois, the Lake County Solid Waste Advisory Committee has been dealing with the feasibility of a regional solid waste management program. With increased federal and state regulation, documented cases of liability and heightened citizen awareness of the problems associated with landfilling solid waste. Lake County municipal officers were urged to become more involved with solid waste management. Lake County mayors turned to the County Board for direction, and the Lake County Solid Waste Advisory Committee (SWAC), formed in February, 1983, was the result.

Lake County communities have traditionally governed themselves in diverse ways, independent of County oversight or control. Thus the concept of a countywide solid waste committee was first met with some skepticism. The County Board committed $150,000 for the preparation of a solid waste management feasibility study and challenged the municipalities and industries in Lake County to raise $50,000 in

Page 10 / Illinois Municipal Review / June 1986

matching funds. Within six months, 30 municipalities, 11 townships and 43 industries had signed letters of support for the project and committed an additional $50,000. By pooling resources, the SWAC was able to do on a regional basis what no individual unit of government could do by itself.

The first major product of the SWAC was a Solid Waste Management Plan Feasibility Study prepared in conjunction with professional engineering consultants, and approved by the Lake County Board in August, 1984. The principal recommendation of the study was that the county consider development and implementation of a waste disposal system consisting of mass burn incineration, recycling and landfilling. The study included a wealth of data on waste generation technologies, financing and necessary enabling legislation.

The study recommended that new legislative authority be obtained to provide a regional governmental agency with "the authority to make solid waste management policy, prepare and implement solid waste plans, own and operate a resource recovery facility, and control the waste stream."

The County Board, the Lake County State's Attorney's Office and the SWAC worked on the new legislation beginning in late 1984. In late 1985, HB 2022, "An Act Relating to the Disposal of Solid Waste," with the support of the Illinois Municipal League and other local government entities, was signed into law by Governor Thompson as Public Act 84-963.

The new law provides broad latitude in the use of intergovernmental agreements in order to prepare and implement solid waste management plans. Although the law permits single units of government to prepare these plans, the emphasis of the law is on the formation of intergovernmental agencies.

One of the most powerful provisions of the law, pertaining to control of the waste stream, applies almost solely to municipalities which have entered into some type of intergovernmental arrangement. This part of the law states that "within any municipality which is a signatory to a plan providing for the management of solid waste generated by more than one municipality or county," the methods of disposal identified in the plan may be the exclusive methods of disposal allowed within the jurisdictions, notwithstanding the fact that competition may be displaced or that such ordinance of agreement may have an anti-competitive effect. This type of control over disposal means that, for the first time in Illinois, it will be possible for groups of municipalities to seriously consider resource recovery facilities as an alternative to landfilling.

Although Lake County is still in the planning stage, from our perspective, along with others involved in the effort, we foresee successful implementation. Illinois will then become part of a trend that includes York County, PA; Bristol, CN; Portsmouth, NH and other sites where municipal cooperation not only solves problems of local citizenry, but helps preserve cleaner land and water for all of us. •

June 1986 / Illinois Municipal Review / Page 11