ENVIRONMENTAL UPDATE By Stephanie P. Brown Stephanie P. Brown practices environmental law with Piper & Marbury L.L.P. in Baltimore, Maryland, and is a member of the Environmental Law Committee of the Section of State and Local Government Law. Sewer Authority Superfund Liability May Foreshadow Mandatory Pretreatment The U.S. Supreme Court has refused to review Westfarm v. WSSC in which the U.S. Court of Appeals for the Fourth Circuit affirmed the imposition of CERCLA liability on a public sewerage authority based upon seepage of a hazardous substance, tetrachloroethylene (or "PCE"), from the authority's pipes. The PCE, discharged by an industrial user into sewers of the Washington Suburban Sanitary Commission (WSSC), leaked from WSSC's pipes and onto land owned by the Westfarm development company. Westfarm sued WSSC under CERCLA to recover $140,000 in cleanup costs and in negligence for property value diminution. The Fourth Circuit affirmed both the trial court's CERCLA liability judgment and the jury's $2.5 million negligence award. The Supreme Court's refusal to review Westfarm means that sewer operators in the Fourth Circuit and, perhaps, elsewhere will be confronted with the decision whether to require industrial dischargers to pretreat all wastewater—not because the publicly owned treatment works cannot treat the influent—but as a precaution against potential CERCLA and tort liability. See Westfarm Associates Ltd. Partnership v. Washington Suburban Sanitary Comm'n, 66 F.3d 669 (4th Cir. 1995), cert. denied, 116 S. Ct. 1318 (Mar. 25, 1996). Groundwater Monitoring Relief for Small Municipal Solid Waste Landfills Congress has amended the Resource Conservation and Recovery Act to exempt from groundwater monitoring requirements certain "small" municipal solid waste landfills (i.e., those at which less than twenty tons of municipal solid waste are disposed of daily). Pursuant to Subtitle D of RCRA, new and existing MSWLFs are subject to stringent operating, groundwater monitoring, closure, financial assurance, and other criteria. The new exemption pertains only to small MSWLFs located in "remote" areas (i.e., where certain interruptions in surface transportation preclude access to a regional waste management facility), and in "dry" areas (i.e., where there is no practicable waste management alternative and annual precipitation is twenty-five inches or less). There also must be no evidence of associated groundwater contamination, and a state may override the exemption. The amendment also directs EPA to promulgate regulations within the next two years to allow additional flexibility for small MSWLFs with respect to daily and final cover, gas monitoring, and financial assurance requirements. See Pub. L. No. 104-119. EPA Remediation Order Preempts Local Zoning Order A U.S. district court has ruled that a city may not use a cease-and-desist order issued pursuant to local zoning law to prevent compliance with an EPA remediation order. In this case, EPA ordered a landowner to remediate a Superfund site by, among other things, demolishing on-site buildings, and relocating and burying contaminated soils. Thereafter, the city served the landowner with a cease-and- desist order alleging that the work violated local zoning laws. EPA sought to enjoin the city from enforcing the cease-and-desist order. The federal court ruled that the city's order was preempted because the order was in direct conflict with federal and state law in that the city's order (1) was "an obstacle" to accomplishing congressional objectives in enacting CERCLA, and (2) made it "a physical impossibility" for the landowner to comply with both the federal and local commands. See United States v. City and County of Denver, Colorado, 916 F. Supp. 1058 (D. Colo. 1996). Landfill Closure Costs Recoverable Under CERCLA Another federal district court has ruled that a town may recover costs incurred in closing its landfill as part of a state-ordered site remediation, although the costs would have been incurred anyway to bring the landfill into compliance with state law. In this case, a town sued under CERCLA to recover $3.5 million spent to remediate contamination at a solid waste landfill. In seeking dismissal, defendants claimed, among other things, that (1) the costs were not caused by a hazardous substance release but, rather, by the town's ordinary obligation to meet state landfill closure and maintenance requirements, and (2) the town's history of noncompliance with state regulations foreclosed cost recovery. The court denied defendants' dismissal motion, ruling that neither circumstance barred a CERCLA cost recovery action. See Town of New Windsor v. Tesa Tuck, Inc., 1996 WL 120506 (S.D. N.Y. 1996). New Source Performance Standard for Municipal Landfills Pursuant to the Clean Air Act, EPA has promulgated a New Source Performance Standard and emission guidelines for large MSWLFs, i.e., those with an annual non-methane organic compound (NMOC) emission rate of fifty megagrams per year or more. The NSPS, a nationally uniform emission standard, applies to new and modified sources, and was effective upon promulgation. The emission guidelines, which serve as a template for state regulation of existing sources, become effective upon a state's promulgation of conforming regulations. Both the NSPS and guidelines require the owner or operator of an affected MSWLF to install and operate a gas collection and control system which meets regulatory criteria. Also, both rules impose recordkeeping, monitoring, reporting, and other requirements. Notably, whereas the new NSPS and guidelines apply to landfill NMOC emissions, Subtitle D of RCRA sets forth requirements for MSWLF methane emissions. See 61 Fed. Reg. 9905 (Mar. 12, 1996). New Source Performance Standard for Municipal Waste Combustors EPA also has promulgated a new NSPS and emission guidelines for municipal waste combustors. Generally, the NSPS and guidelines apply to an MWC with a capacity exceeding thirty-five megagrams (approximately forty tons) per day. The NSPS applies to new or modified MWCs, and the emission guidelines will apply to existing MWCs. In 1992, EPA promulgated an NSPS and emission guidelines for then new, modified and existing MWCs. Among other things, EPA's more recent regulation applies to more pollutants, and sets forth material separation and other new operating requirements. See 60 Fed. Reg. 65,387 (Dec. 19, 1995). See also 60 Fed. Reg. 65,382, 60 Fed. Reg. 65,437 (Dec. 19, 1995). EPA Announces Public Water System Monitoring Requirements EPA has announced that, starting early next year, public drinking water systems that serve populations greater than 100,000 and use surface water as a drinking water source must monitor for cryptosporidium for eighteen months. EPA intends that this data collection activity will provide information about sources of, and effective treatments for, cryptosporidium, which causes gastrointestinal illness and death. EPA has conceded that because cryptosporidium is difficult to detect and treat, current drinking water safety standards do not explicitly ensure its removal. The new program also will require monitoring of other disease-causing microbial contaminants. Congress Repeals Employee Commute Options Mandate Congress has amended the Clean Air Act, making voluntary the mandate that certain states compel large employers—including state and local governments—to implement Employee Commute Options programs to discourage solo commuting by their employees. The ECO requirement, established as part of the 1990 Clean Air Act Amendments, applied to large employers (i.e., those with 100 or more employees) located in metropolitan areas designated as having the nation's worst ozone pollution. Heeding widespread opposition, Congress repealed the ECO mandate, giving affected states the option to use alternative measures to reach statutorily mandated air pollution emission reduction goals. EPA guidance on the use of substitute measures is forthcoming. See Pub. L. No. 104-70.