The following articles are excerpts from the newsletter:

Federal Court Enjoins Virginia Disposal Caps, Barge Ban and Regulations,
David Biderman, General Counsel, National Solid Wastes Management Association

MSW Settlement with EPA Rejected by Court,
Lisa Dowden

EPA Guidance on No-migration Demonstrations for Municipal Solid Waste Disposal Facilities,
John H. Turner

 

FEDERAL COURT ENJOINS VIRGINIA DISPOSAL CAPS, BARGE BAN AND REGULATIONS

David Biderman, General Counsel
National Solid Wastes
Management Association

Virginia has recently become the second largest importer of solid waste in the United States. Virginia landfills accepted over 4.5 million tons of out-of-state solid waste in 1998. New York, Maryland and the District of Columbia provided the majority of the out-of-state waste landfilled in Virginia. The planned closure of New York City's legendary Fresh Kills landfill scheduled for 2001, and resulting industry plan to redirect a substantial amount of New York City's waste to Virginia's regional landfills created a political firestorm in Richmond earlier this year.

The Virginia General Assembly passed legislation in early 1999 aimed at

sharply curtailing the flow of out-of-state waste into Virginia. This legislation:

• capped the amount of waste any Virginia landfill could accept at the greater of: 2,000 tons per day or the average amount accepted by the landfill in 1998;
• prohibited the transport of solid waste by barge or other vessel on the Rappahanock, James and York Rivers;
• instructed a Virginia agency to promulgate regulations governing the transport of solid waste by barge; prohibited shipping barged waste stacked over two containers high.

Waste Management, the owner of a marine transfer facility on the James River, a barge company, and a Virginia county filed a lawsuit challenging the legislation and a motion asking for a preliminary injunction blocking its implementation. Allied Waste, another national company that owns a Virginia landfill, filed a similar lawsuit. The National Solid Wastes Management Association filed an amicus brief in support of the motions for preliminary injunction.

The court enjoined all three provisions of the legislation, concluding that the provisions discriminated against interstate commerce under the dormant Commerce Clause. At the June 29, 1999 hearing, U.S. District Court Judge James Spencer announced his decision from the bench. Judge Spencer scolded Virginia's lawyers because there is a significant amount of prior law on the subject that is very clear. The court applied strict scrutiny to the legislation, concluding that the laws "plainly" discriminate against out-of-state interests in their practical effect and their purpose. Under the strict scrutiny standard, such laws are considered per se invalid. Such restrictions can survive judicial scrutiny only where the actions are justified by a valid factor unrelated to economic protectionism and there are no nondiscriminatory alternatives adequate to preserve the local interests at stake.

The court further concluded that the practical effect of the barging restrictions and landfill volume limits created "exclusively burdens" on out-of-state waste. The court observed that the three subject rivers were not used to transport Virginia-generated waste, and that Waste Management plans to resume the barging of New York waste later this year. The court also pointed out that the stacking provision would essentially preclude the use of container barges in Virginia as the practical result would limit barge loads to less than half of capacity.

As to the volume disposal limits for out-of-state waste, the court concluded that although facially neutral, the provision was discriminatory in its application. The volume limitation would affect only the seven large regional landfills that accepted virtually all of the out-of-state waste disposed in Virginia. Virginia argued that the landfills had the option of seeking a waiver of the volume limits and thus, the statute was valid, however, the court rejected this argument.

A final decision in Waste Management Holdings, Inc. v. Gilmore is expected by the end of the year.

 

MSW SETTLEMENT WITH EPA REJECTED BY COURT

Lisa Dowden

A U.S. District Court judge in New York rejected a settlement agreement between EPA and four New York municipalities accused of arranging for the disposal of municipal solid waste at a Superfund co-disposal site. This was the first case in which EPA attempted to enter a settlement pursuant to its Municipal Solid Waste Settlement Policy. The policy previously withstood a general challenge to its implementation mounted by industry. See Chemical Manufacturers Association v. Environmental Protection Agency, 26 F.Supp.2d 180 (D.C. 1998)

The decision came in United States v. Allied Signal, Inc. and Amphenol Corp. 1999 WL 636596 (N.D.N.Y. Aug. 18), where a third party action was instituted by non-municipal generator defendants against the Towns of Sidney, Masonville, and Tompkins and the Village of Sidney, New York. The District Court concluded that the application of the policy on the facts of the particular case was not reasonable, and therefore refused to approve entry of the consent decree.

The district judge disapproved the settlement because the $5.30 per ton payment for municipalities was an insufficient contribution to the costs of closing a solid waste facility similar in size and configuration to the site in question. Judge McAvoy wrote " . . .the $5.30 figure does not fairly represent the response costs the municipal defendants could reasonable expect to pay for the closure of the [landfill]. Although the [landfill] may be classified as a co-disposal site, the Policy should not be followed blindly, particularly when to do so would lead to inequity." *5. The court acknowledged that the MSW settlement policy addressed costs associated with closing a co-disposal site in compliance with federal regulations; however, he recognized that the more stringent New York landfill closure requirements would result in greater costs at the subject site.

The United States relied on the affidavit of the county Department of Public Works Solid Waste Coordinator for the use of $5.30 per ton settlement amount. The court found that the affidavit failed to support application of the policy in this instance. In particular, the court rejected EPA's reliance on first quarter 1991 costs, without an adjustment for inflation, and noted the absence of any explanation for figures used in the affidavit. The court further noted that in determining the $5.30 per ton as a reasonable settlement amount, the supporting affidavit did not take into account the costs of post-closure monitoring and maintenance. He noted that since the proposed consent decree applied to all costs "incurred or to be incurred at or in connection with the Site" the settlement figure should also take into account those costs. *6. Finally, the court appeared unwilling to approve a settlement that assigned the municipalities only a very small share of the total, well defined cleanup costs without any determination of "arranger" liability for the settling municipalities.

The case is presently slated to move on to trial of the liability issues. EPA and the Department of Justice are not planning to appeal, though the plans of the municipalities involved are not known. EPA has stated its intention to continue applying the MSW policy in appropriate cases.

 

EPA GUIDANCE ON NO-MIGRATION DEMONSTRATIONS FOR MUNICIPAL SOLID WASTE DISPOSAL FACILITIES

John H. Turner

States with Approved 40 CFR part 258 municipal waste disposal programs may, pursuant to 40 C.F.R. § 258.50, authorize the owner or operator of a municipal solid waste landfill ("MSWLF") facility to suspend ground water monitoring. The regulations permit suspension of ground water monitoring upon a demonstration that there is no potential for migration of hazardous constituents to the uppermost aquifer. The no-migration determination must be based on site-specific data and contaminant transport predictions using conservative assumptions. "This demonstration must be certified by a qualified ground water specialist and be based on site-specific, field collected measurements, sampling, and an analysis of physical, chemical and biological processes affecting contaminant fate and transport. The determination also must include contaminant fate and transport predictions that maximize contaminant migration and consider impacts on human health and the environment." 56 Fed. Reg. 50,978, 51,062 (Oct. 9, 1991).

Although state agencies rather than EPA issue no-migration exemptions ("NMDs") the Agency recently released a guidance screening document, Preparing No-Migration Demonstrations for Municipal Solid Waste Disposal Facilities: A Screening Tool, OSWER, EPA 530-R-99-008 (Feb. 1999). This document is intended to assist owners and operators of MSWLFs in determining the likelihood of success of an application. The guidance does not substitute for the in-depth analysis of site-specific data that is required by the regulations. Moreover, because federal regulations establish performance standards, "decisions about NMDs can differ from state to state, as can requirements governing the amount of data and level of detail of information required for an NMD." Some states do not grant NMDs at all. Others may require a number of samples, borings and data on a number of parameters. Facilities that appear to be good candidates based on the screening analysis may be rejected on site-specific grounds. However, given the expense and time-required for data acquisition in the exemptions application process, use of the screening guidance to determine whether a facility is a good candidate for receiving an NMD is of considerable value.

Although neither the Resource Conservation and Recovery Act ("RCRA") nor the Part 258 regulations specifically limit the applicability of the exemption to landfills located in certain areas or of certain sizes, the Guidance identifies "those relatively small MSWLFs in dry areas (generally west of the Mississippi River) that do not meet the 40 C.F.R. §258.1(f)(1) criteria for an exemption from the groundwater monitoring requirements" as target sites. Exempt facilities need not submit no-migration applications. The EPA's presumptions regarding the scope of the NMD process is based on an "informal analysis" of 17 NMD applications filed by owners or operators who were successful in obtaining exemptions from seven state regulatory agencies. The majority of the successful demonstrations were for small landfills located in Montana.

Based on EPA's review of state files, it observed that most of the successful applications involved annual precipitation rates of less than 15 inches and all of the successful applications were in areas with less than 25 total inches of precipitation. Accordingly, all of the facilities granted NMDs were in arid areas as defined by the regulations. Seventy-six percent of the MSWLFs with NMDs had a depth to ground water in excess of 50 feet. A minimum of 200 foot depth to ground water were present at fifty-three percent of the surveyed facilities. Forty-four percent of the facilities had maximum soil permeability of equal to or less than one foot per year. All of the involved MSWLFs had an annual evapotranspiration rate equal to or greater than 30 inches.

According to EPA these statistics are intended neither to discourage, or unduly encourage NMD applicants. Through the use of the decision-making tools in the Guidance, owners and operators with reasonable estimates of annual precipitation, annual evapotranspiration, depth to ground water and maximum soil permeability can assess the probability of success of an NMD application. The Guidance also provides information on the use of soil type and infiltration rate information to ascertain the estimated travel time for hazardous constituents from the MSWFL to the water table. This offers a second means of evaluating the NMD application.

While the Guidance offers assistance to MSWLF owners, operators and state agencies, it begs the questions of the cost-effectiveness of a landfill and its overall compliance with applicable standards. A successful NMD does not excuse non-compliance with other requirements of 40 C.F.R. part 258. Moreover, the EPA has consistently noted that larger, regional landfills are more cost-effective and tend to be designed, operated and monitored with heightened concern for overall protection of the environment.

John Turner is with the Environmental Law Institute in Washington, DC.