State & Local News Vol. 20, No. 1, Fall 1996 Environmental Update 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. Environmental Update By Stephanie P. Brown Significantly Revised Safe Drinking Water Act Enacted President Clinton has signed into law Senate Bill 1316, which significantly amends the SDWA and establishes new funds for drinking water source protection and development. Among other things, the new SDWA, which became effective upon the President's signature on August 6: Requires EPA to issue additional drinking water standards, surface water treatment rules, and disinfectant treatment requirements for public water systems; Appropriates $1 billion for state loan funds to, among other things, provide financial assistance to community water systems, and appropriates $25 million for source water protection and water supply system improvements; Requires systems to notify consumers of certain non-compliance events; Allows certain regulatory relief for, and technical assistance support to, small public water systems; and Requires EPA to study arsenic-related health risks. Municipality Lacks Standing to Seek Natural Resource Damages A federal district court has ruled that, absent specific appointment by the governor of a state, a municipality, or other political subdivision of as state is not qualified to bring a cost recovery or declaratory action for natural resource damages under CERCLA. The court also ruled that, because the town itself was a liable party, it could not sue for cost recovery under section 107 of the statute but, rather, was limited to a contribution action under section 113. (Section 107 imposes joint and several liability, so that a selected party may be obligated to pay not only its own share of liability but also the "orphan share" attributable to insolvent and defunct polluters.) See Borough of Sayerville v. Union Carbide Corp., 923 F. Supp. 671 (D. N.J. 1996). EPA Issues CERCLA Orphan Share Policy On June 3, EPA issued guidance to its regions that will allow EPA to settle CERCLA cases without receiving compensation for orphan shares. The policy would allow regions to forgive up to 25 percent of total costs at a site as orphan shares by not seeking recoupment of past costs and reducing liability for future oversight costs. Although the policy's limitation to past costs and future oversight costs is not a radical departure from EPA's former practice, the policy does establish a presumption that EPA regions will provide the maximum amount appropriate for the orphan share component of a settlement. Court Finds No Retroactive CERCLA Liability But Appeal Pending Diverging from the great weight of authority, a federal district court has ruled that imposition of retroactive liability is inconsistent with Congressional intent in enacting CERCLA. The district court raised the issue of CERCLA's constitutional limitations sue sponte. The U.S. Department of Justice, on behalf of EPA, has filed for an expedited appeal to the Eleventh Circuit. See United States v. Olin Corp., 927 F.Supp. 1502 (S.D. Ala. 1996). Proposal to Give State and Local Governments Transportation Plan Flexibility EPA has issued a proposed rule to give state and local air and transportation officials greater discretion and flexibility in overseeing activities pursuant to the federal transportation conformity rule. This rule requires that federally supported transportation plans, programs and projects conform with air quality SIPs, so that the transportation activities will not degrade or impede improvements in air quality. Among other things, the proposed rule would give state and local officials greater authority in setting performance measures used as tests of conformity, and will allow rural areas to choose among several conformity tests. See 61 Fed. Reg. 36,112 (July 9, 1996). Supreme Court Let's Stand Citizen Suit of Municipal Water Violations The U.S. Supreme Court has refused to review a decision of the U.S. Court of Appeals for the Ninth Circuit that broad, non-numerical state water quality standards mentioned in a city's discharge permit are subject to citizen enforcement. A citizens' group had sued the City of Portland, alleging that the city's discharge of untreated effluent from combination sewage-stormwater pipes into local waterways constituted a violation of the Clean Water Act. The city's NPDES permit did not include specific effluent limitations for the discharges, but did proscribe discharges in violation of the state's water quality standards. The high court's refusal to consider this ruling suggests that municipalities, and others, may be more vulnerable to citizen enforcement for water quality violations. See Northwest Environmental Advocates v. City of Portland, 56 F.3d 979 (9th Cir. 1995), cert. denied, 116 S. Ct. 2550 (1996). County's Off-site Wetlands Development Moots Claim for Injunctive Relief A federal district court in New York has ruled that, inasmuch as a county has agreed to off-site wetlands restoration, the county need not restore wetlands that the county had illegally filled during the construction of a now abandoned landfill expansion project. A citizen group had sued the county seeking on-site restoration, under the theory that the continued existence of the nonpermitted fill constituted a continuing violation subject to citizen enforcement under the Clean Water Act. See Orange Environment, Inc. v. County of Orange, 923 F.Supp. 529 (S.D. N.Y. 1996). State Agency Denied Sovereign Immunity A federal court of appeals has ruled that a Thruway Authority is not an "arm of the State" and, therefore, not entitled to Eleventh Amendment immunity in a Clean Water Act citizen suit. Individuals had sued the Authority claiming that its storm sewer discharges into a local bay constituted violations of federal water law and state tort laws. The court ruled that, inasmuch as the Authority was a generally self-funded public entity over which the state exercises minimal control, it was not entitled to sovereign immunity. See Mancuso v. New York State Thruway Authority, 86 F.3d 289 (2nd Cir. 1996). New Rule Affects Construction/Demoltion Debris Landfills EPA has promulgated a rule which sets forth location restrictions, groundwater monitoring, and closure and corrective action requirements for non-municipal disposal facilities, including publicly-owned or operated facilities, that accept very small quantities of hazardous waste. This rule primarily affects construction and demolition debris landfills, according to EPA. The new requirements parallel current standards for MSWLFs and, generally, will become effective in 18 to 24 months. The rule will apply to hazardous waste from CESQGs, which are entities that (1) generate no more than 100 kilograms of hazardous waste (or more than one kilogram of acutely hazardous waste) in one month, and (2) do not accumulate more than 1,000 kilograms of hazardous waste (or one kilogram of acutely hazardous waste) at any given time. A major difference between this rule and those for MSWLFs is that non-municipal facilities will have location restrictions related only to flood plains and wetlands, whereas MSWLF location restrictions also apply to airport, fault and unstable areas, and to seismic impact zones. See 61 Fed. Reg. 34252 (July 1, 1996). GLOSSARY CERCLA Comprehensive Environmental Response, Compensation & Liability Act (or "Superfund") CESQG Conditionally exempt small quantity hazardous waste generator (pursuant to the U.S. Resource Conservation and Recovery Act) EPA U.S. Environmental Protection Agency MSWLF Municipal Solid Waste Landfill NPDES National Pollutant Discharge Elimination System (permits issued pursuant to the U.S. Clean Water Act) SDWA U.S. Safe Drinking Water Act SIP State Implementation Plan (pursuant to the U.S. Clean Air Act) State & Local Law News home page | State and Local Government Law home page ABA Network home page