NACo-supported legislation to overturn a 1994 U.S. Supreme Court decision limiting local government control over solid waste generated within its boundaries was defeated by the U.S. House of Representatives in January.
H.R. 349, brought to the House floor by Commerce Committee Chairman Thomas Bliley (R-Va.) under a suspension of the rules usually reserved for non-controversial bills, was defeated 271–150.
A flow control/interstate waste bill, S. 534, was passed by the Senate last May, but given the House rejection of the flow control bill, along with a continuing lack of agreement on interstate waste between Midwestern and East Coast governors, it appears unlikely that any legislation will pass during this Congress.
After striking down flow control in the infamous Carbone vs. Town of Clarkstown case, the U.S. Supreme Court, ironically, may be the only remaining avenue for counties to find legal methods of managing their solid waste systems.
Several counties, cities and towns throughout the country have been involved in litigation testing the limits of the Carbone decision. One of those cases, SSC Corp. vs. Smithtown (N.Y.), reached the U.S. Supreme Court this month, and the court let the lower court ruling stand.
The result of the court’s action is to uphold the town’s authority to contractually require solid waste disposal at a designated facility.
In an unusual display of bipartisan unity on environmental issues, the Senate passed, in December, a measure designed to ease costly federal regulations under the Safe Drinking Water Act (SDWA) for local governments.
S. 1316, sponsored by Senator Dirk Kempthorne (R-Idaho), would repeal the current law’s most egregious requirement — that EPA set standards for 25 additional contaminants every three years to be monitored and enforced by local water systems, even if the contaminants do not appear in drinking water supplies.
The bill targets contaminants most likely to be found in water supplies and gives EPA the ability to direct its efforts to where they are most needed. It also instructs EPA to focus its resources on bacterial contaminants such as cryptosporidium, the pollutant that injured hundreds of people in Milwaukee, Wis. in 1993. The bill further demands good science for future regulation of serious contaminants.
Without legislation to scale back the SDWA’s mandates, EPA estimates that drinking water systems nationwide will invest $1.4 billion to $1.7 billion annually to implement all of the SDWA regulations currently in place or scheduled to be implemented by the year 2000.
The Kempthorne SDWA proposal will require EPA to adopt a new process for selecting contaminants for regulation based on whether the contaminants actually occur in the water supply.
In addition, EPA would have to adopt a risk-based approach to setting new drinking water standards. Standards would be set based on analysis of the costs as well as the benefits.
The bill would also set up a state revolving loan fund for drinking water improvements similar to the fund that helps construct waste water treatment facilities.
No drinking water legislation has yet been introduced in the House, although Commerce Committee Chairman Bliley has indicated that he is interested in an SDWA reauthorization bill during this congressional session.
In May 1995, the House passed a bill (H.R. 961) that would reauthorize the Clean Water Act (CWA). The bill maintains the national goals of fishable, swimmable waters, but provides more flexibility to states and local governments to tailor water pollution programs to meet unique state and local needs.
The bill also refocuses control efforts on the “non-point” sources of pollution that comprise most of the remaining uncontrolled water pollution in the country.
H.R. 961 incorporates risk assessment criteria when EPA updates or develops new water quality standards. New standards must weigh costs and benefits and be based upon a peer-reviewed scientific basis.
Of major importance to counties are the provisions completely revising the storm water management program — a program that, in the absence of a revised CWA, would mandate all counties in urbanized areas to obtain permits for runoff rainwater. H.R. 961 will require states to establish a storm water management program that assesses non-point contributors to water quality, such as agricultural activities, residential drainage, industrial runoff and construction projects, and create a state program for controlling these pollutants.
In conjunction with local governments, states would develop a series of five–year plans to reduce pollutants from runoff and determine what is to be done, and by whom.
In the most controversial part of the bill, H.R. 961 establishes new criteria for determining the value and allowable uses of wetlands.
Wetlands would be classified into three categories — Type A being the most valuable, and Type C worthy of only limited protection. Federal permits to fill a wetland would be required for only Type A wetlands, and in a few cases, Type B.
The definition of a wetland would also be changed to require that the area be inundated at least 21 consecutive days per year. In addition, if a permit to build in a wetland is denied, the owner of the property would be compensated for the lost value of the property.
H.R. 961 has met with universal opposition from national environmental organizations and EPA. President Clinton threatened to veto such a clean water bill.
No legislation has yet been drafted in the Senate, but it is expected that a bill will be developed that includes provisions affecting watersheds, combined sewer overflows, storm water, the state revolving loan fund and wetlands.
(Prepared by Diane Shea, associate legislative director.)
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