State & Local News
Vol. 20, No. 4, Summer 1997
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.
By Stephanie P. Brown
New Jersey Flow Control Laws Invalidated, Again
In the wake of the U.S. Supreme Court's ruling in Carbone v. Clarkstown, a U.S. court of
appeals has affirmed the decision that New Jersey's flow control statute and regulations are
unconstitutional insofar as they discriminate against out-of-state waste facilities. The appeals
court also nullified the lower court's grant of a two-year post-appeal period intended to allow the
state to correct the illegal laws. Thus, the appeals court's injunction against implementation of the
current laws will become effective after exhaustion of the state's appeal, if any, to the Supreme
Court. Atlantic Coast Demolition & Recycling, Inc. v. Atlantic County, 1997 WL 216615 (3d
Cir. May 1, 1997).
Municipal Waste Combustor Rule Reinstated in Part
After vacating EPA's municipal waste combustor (MWC) rule establishing new source
performance standards (NSPS) for all new MWCs and emission guidelines for all existing MWCs,
a U.S. circuit court has reinstated the rule insofar as it applies to "large" MWCs, i.e., those with
capacities of 250 or more tons per day. Thus, the court's earlier nullification of EPA's NSPS and
Emission Guidelines applies only to "small" MWCs, i.e., those with capacities below 250 tons per
day. Davis County Solid Waste Management District v. EPA, 108 F.3d 1454 (D.C. Cir. 1997),
amending, 101 F.3d 1395 (1996).
Citizens Lack Standing to Challenge Waste Ordinance
A federal circuit court has ruled that neither a nonprofit corporation nor local residents
have standing to challenge a county ordinance which requires citizens to either subscribe to a
company's garbage collection and disposal service, or haul their own trash to an approved
disposal site on a weekly basis. Furthermore, the court ruled that the program under which
residents were charged a monthly fee for the company's curbside recycling service whether or not
they used this service was not an unconstitutional taking of the citizens' property interest in
recyclable material. Individuals for Responsible Government, Inc. v. Washoe County, 110 F.3d
699 (9th Cir. 1997).
CERCLA Liability Inapplicable
A federal appeals court has reversed an award of CERCLA response costs to plaintiffs
who failed to demonstrate that the defendant's release breached an applicable standard. The court
found that none of the standards upon which the plaintiffs relied pertained to CERCLA liability,
i.e., (1) the U.S. Geological Survey "background level" was not a legal standard under any
environmental law, (2) the drinking water standard was not applicable where lead levels were
measured at the tap and not linked to groundwater standards, and (3) results of RCRA's TCLP
(Toxicity Concentration Leaching Procedure) test were below regulatory levels. Licciardi v.
Murphy Oil U.S.A., Inc., 1997 WL 194062 (5th Cir. Apr. 21, 1997).
City Not Subject to Clean Water Act Enforcement
The federal government may not enforce a city's industrial pretreatment program unless
the program has been incorporated into the city's NPDES permit, according to a federal trial
court. During extended negotiations over the city's wastewater program, the state reissued the
city's NPDES permit without including the program. The city obtained summary judgment
because the CWA establishes adoption of a pretreatment program into a permit as a prerequisite
to enforcement. United States v. Detroit, 940 F. Supp. 1097 (E.D. Mich. 1996).
City Not Subject to Clean Water Act Citizen Suit
A city that uses its "best efforts" to comply with CWA requirements may not be at risk of
citizen suit, according to a federal district court. The city had entered into a consent decree with
the state agency authorized to administer EPA's CWA program. The decree required the city to
reduce phosphorus discharges and upgrade waste pollution control plants. The court found that
the city's tardiness in meeting these obligations was not a "continuing violation" and, thus, did not
subject the city to CWA citizen action. Upper Chattahoochee Riverkeeper Fund, Inc. v. Atlanta,
953 F. Supp. 1541 (N.D. Ga. 1996).
Water System Grants Available
EPA has published final guidelines and the funding allotment for implementation of the
$50 million Hardship Grants Program for Rural Communities. The program provides funding to
improve wastewater treatment services in rural communities of 3,000 or fewer people. 62 Fed.
Reg. 13,522 (Mar. 20, 1997).
PRP Identification Deemed Premature
A federal court has ruled that a plaintiff's suit for a declaration it is not liable under
Superfund is unripe when the government has only named the plaintiff as a PRP, but has neither
taken enforcement action nor determined what response, if any, should be taken at the site. In the
court's view, the threat of liability was not "sufficiently immediate" to constitute an actual
controversy even though the plaintiff was a former site owner and, thus, likely to face CERCLA
liability inevitably. Principal Mutual Life Ins. Co. v. Western Resources, Inc., 1997 WL 219904
(D. Kan. Apr. 30, 1997).
GLOSSARY
| CWA | Clean Water Act |
| CERCLA | Comprehensive Environmental Response, Compensation and
Liability Act (or "Superfund") |
| EPA | U.S. Environmental Protection Agency |
| NPDES | National Pollutant Discharge Elimination System permit |
| PRP | Potentially Responsible Party |
| RCRA | Resource Conservation and Recovery Act |
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