Edward W Repa
3. If circumstances are such that a general permit is not available or not applicable to a spe cific facility, the operator must obtain coverage under an individual permit that the
NPDES permitting authority will develop with requirements specific to the facility. Because the NPDES program is a federal permit program that states can seek delegation under, many states have adopted different programs for application or modified the federal program. States that presently have delegated authority for all or part of the NPDES permit program are listed in Table 2.4. Facilities seeking storm water discharge permits should check with a delegated state to ascertain the availability of permits.
On January 9, 2001, the U.S. Supreme Court, in a 5 to 4 decision (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers,99-1178), ruled that the Clean Water Act (CWA) does not enable the Army Corps of Engineers to protect migratory bird habitats in intrastate nonnavigable waters. The decision allows a group of municipalities in Northern Cook County, Illinois, to locate a landfill on a former quarry that had become a pond and wet- lands used by migratory birds. The Chief Justice wrote that the abandoned gravel pits are a “far cry” from the large and navigable waters that Congress intended to protect under the Clean Water Act.
TABLE 2.4 NPDES General Permitting Authorities NPDES states
With general Without general
State permitting authority permitting authority Non-NPDES states*
Alabama X Alaska X Region 10 Arizona X Region 9 Arkansas X California X Colorado X Connecticut X Delaware X District of Columbia X Florida X Georgia X Hawaii X Idaho X Region 10 Illinois X Indiana X Iowa X Kansas X Kentucky X Louisiana X Maine X Maryland X Massachusetts X Region 1 Michigan X Minnesota X Mississippi X Missouri X Montana X Nebraska X Nevada X
New Hampshire X Region 1
New Jersey X
New Mexico X Region 6
New York X North Carolina X North Dakota X Ohio X Oklahoma X Oregon X Pennsylvania X Rhode Island X South Carolina X South Dakota X Tennessee X Texas X Utah X Vermont X Virginia X Washington X West Virginia X Wisconsin X Wyoming X
Section 404 of the Clean Water Act requires a permit from the Army Corps of Engineers to “dredge and fill” wetlands. However, the Corps can no longer rely on the Migratory Bird Act alone to assert CWA jurisdiction. States may choose to enact legislation to protect simi- lar isolated and intrastate wetlands.
2.4
FEDERAL AVIATION ADMINISTRATION GUIDELINES
Federal Aviation Administration (FAA) Advisory Circular (AC) 150/5200-34 (August 8, 2000) establishes guidance concerning the siting, construction, and operation of municipal solid waste facilities (i.e., landfills, recycling facilities, and transfer stations) on or in the vicin- ity of FAA-regulated airports. The directive reflects the intent of Congress to place further limitations on the construction of MSWLFs near certain smaller airports, especially those landfills that attract birds. Bird-aircraft collisions are dangerous. If a new landfill (constructed or established after April 5, 2000) is intended to be located within 6 mi of an airport, either it should be relocated or the proponents should apply to the appropriate state agency for an exemption before starting construction. The airports are considered to be nonhub, nonpri- mary commercial services that are recipients of federal grants under 49 U.S.C. 4701. Other specifics apply. The advisory does not apply to Alaska.
2.5
FLOW CONTROL IMPLICATIONS
The theory of flow control is that states control the flow of solid waste to the extent of being able to restrict the import of waste from other states. This concept of flow control was chal- lenged in several courts with the following results.
The Supreme Court decision,Carbone v. Clarkstown(1994), prohibits states from discrim- ination, in violation of the commerce clause and in the absence of authorizing Congressional legislation, by directing solid waste to a specific facility and/or excluding out-of-state waste. Relief may be gained if “the local government demonstrates under rigorous scrutiny that it has no other means to advance a legitimate local interest.”
Local planning units cannot plan for the disposal of solid waste in terms of recycling or waste-to-energy because garbage is now protected by the Interstate Commerce Commission (ICC). (There are proposals bills in Congress as of this writing to override the Carbone deci- sion). Local governments cannot manage their own solid waste to the exclusion of out-of- state waste.
On June 4, 2001, four Virginia laws restricting out-of-state trash were struck down by a fed- eral appeals court. The court upheld the lower judge’s decision that under the interstate com- TABLE 2.4 NPDES General Permitting Authorities (Continued)
NPDES states
With general Without general
State permitting authority permitting authority Non-NPDES states*
American Samoa X Region 9
Guam X Region 9
Northern Mariana Islands X Region 9
Puerto Rico X Region 2
Virgin Islands X
merce clause of the Constitution, states cannot stop the import of waste to their landfills (State Recycling Laws Update,June 2001).
In Virginia, a solution to protect the electricity producing waste-to-energy facilities was achieved by reducing the tipping fees at the landfill to encourage the haulers to maintain their delivery schedules. But the waste-to-energy facility bonds had to be refinanced.
Some of the obvious conclusions were the following:
● Solid waste haulers cannot be prohibited from taking waste to cheaper landfills in other
states
● Landfills or waste-to-energy facilities that were built with the expectation of receiving spec-
ified wastes will not have those resources. In fact, a number of the waste-to-energy facilities have had their bond ratings lowered.
● There may be more land transportation miles involving solid waste.
● There may be more air pollution as a result of the increase in transportation. ● Increased transportation will increase fuel use.
In New Jersey,Atlantic Coast II[921 F. Supp. At 351, P23 (1997)] discussed possible rami- fications of the Carbone decision.
The court stated “we disagree with the State’s presumption that its problems are insur- mountable.” The district court listed several alternatives by which the state could lift its flow control laws yet ensure the financial integrity of the local government entities. In particular, the court suggested that the state: (1) issue new bonds to refinance its in-state solid waste disposal facilities, (2) implement “user charges” for those who use the facilities or a “system benefit charge” to make up for lost funds, (3) issue a statewide solid waste tax (or assessment) on all waste generated in-state regardless of where it was sent (in or out of state) for disposal, (4) have the municipalities establish long-term contracts with solid waste facilities (assuming, of course that out-of state facilities could compete with in-state facilities on equal footing), or (5) fund the system through a combination of municipal, county, or state “general revenues” (i.e., taxes).
In a recent case,A.G.G. Enterprises, Inc. v. Washington County, Oregon(9th Circuit Court of Appeals), discussed in Municipal Solid Waste(March/April 2001, pp. 91–92) the question was: Is garbage property and are franchise agreements valid?
The ICC regulates the interstate transportation of property, something that is owned and that has “economic value.” Garbage can be owned, but it is questionable that it has any posi- tive economic value unless it consists of recyclable materials in commercial quantities to attract a buyer and the hauler is in fact carrying segregated recycled materials to a processing facility. Curbside pickup of recylables may not reach the level of “commercial” quantity. Congress used the Federal Aviation Administration Act (FAAA) to deregulate trucking and “to prevent nonfederal interference with deregulation. The FAAA included language that prevents state and local governments from enacting or enforcing any ‘law, regulation, or other provision having the force or effect of law to the price, route, service of any motor carrier . . . with respect to the transportation of property.’ ” The question then is, are haulers who have a franchise agreement to haul or process solid waste, including curbside recylables, hauling property? If they are, their franchise agreements may be invalidated.