State & Local News Vol. 21, No. 2, Winter 1998 Environmental Law Update By Stephanie P. Brown Citizens Cannot Enforce More Stringent Standards A federal appeals court has affirmed dismissal of an Resource Conservation and Recovery Act (RCRA) citizen suit against a city for violations of RCRA Subtitle D requirements where the plaintiffs sought to enforce state standards that exceed the federal minimum criteria. The court, however, concluded that RCRA does permit citizen enforcement of the federal minimum criteria in approved state programs. Also, the court indicated that citizen enforcement of more stringent state standards may be permissible under the Clean Water Act and Clean Air Act. Ashoff v. City of Ukiah, California, No. 97-15010, reprinted at 1997 WL 738883 (9th Cir. Dec. 2, 1997). Solid Waste Scheme Upheld A federal court of appeals has upheld the constitutionality of a Kentucky solid waste planning law. The court affirmed dismissal of a claim brought by a would-be landfill owner that alleged local authorities had denied it a permit because the company's facility would be used to dispose of out-of-area waste. The appeals court reasoned that the permit denial probably was based upon contractual matters and a change in policy set by the new members of the local permit-granting authority, rather than due to any attempt to illegally discriminate against foreign waste. Eastern Kentucky Resources v. Magoffin County Fiscal Court, 127 F.3d 532 (6th Cir. Oct. 15, 1997). Unconstitutional Flow Control A court has ruled that an ordinance which required the disposal of all local residential waste at a local, publicly owned waste-to-energy facility discriminates against interstate commerce, in violation of the Commerce Clause. Waste Management, Inc. of Tenn. v. Metropolitan Government of Nashville and Davidson County, Nos. 95B5863, 95B900, reprinted at 1997 WL 690850 (6th Cir. Nov. 5, 1997). Relief for Small Landfills Effective EPA has made final its rule giving regulatory flexibility to "small" municipal solid waste landfills, i.e., those that receive twenty tons or less of municipal solid waste per day. The regulation, effective October 27, 1997, provides alternative frequencies for daily cover, methane monitoring, and infiltration layers for final cover. 62 Fed. Reg. 51,606 (Oct. 2, 1997). City Held Indemnitor for Waste Site Use A federal appeals court has affirmed summary judgment requiring a city to indemnify a company whose predecessor licensed property to the city for use as a waste disposal site. In so doing, the court rejected the city's claim that a trial was necessary to show that the company's indemnity demand resulted from its own disposal of hazardous waste at the site. Mulberry Phosphates Inc. v. City of Toledo, Ohio, No. 96-3231, reprinted at 1997 WL 539680 (6th Cir. Aug. 29, 1997). And Watch for . . . Activity-specific wetlands permits from the U.S. Corps of Engineers, to replace the general permit being phased out. A new general permit for storm water associated with construction sites, to replace the expired 1992 general permit. State & Local Law News home page | Table of Contents