Landfill Permits Out of Corps' Hands

The U.S. Army Corps of Engineers has no authority to prevent construction of a municipal solid waste landfill on a wetlands site, under a federal appeals court ruling. [Resource Investments Inc. v. U.S. Army Corps of Engineers, No. 97-35934, 9th Cir., July 27, 1998]

In 1988, Resource Investments Inc. ("RII") bought a 320-acre site in Pierce County, Wash., where it planned to construct and operate a municipal solid waste landfill. The proposal conforms with the county solid waste management plan, which recommends an in-county solid waste landfill as the primary means of solid waste disposal, and encourages private sector efforts to meet the county's landfill needs.

Under Washington State's municipal solid waste landfill permit program, which was approved by the U.S. Environmental Protection Agency (EPA), an applicant must prove its case to the same extent as EPA itself requires in Subtitle D regulations. The state has delegated its permit authority in Pierce County to local officials.

To develop the landfill, RII would have to clear, excavate, fill and grade about 21 acres of wetlands. Offsetting the wetlands loss, RII agreed to create, preserve and restore wetlands on a dedicated 85-acre wetlands conservation area on the site. Moreover, RII successfully proved to county officials that:

1. a practical alternative to the proposed landfill with no wetlands impact was unavailable;

2. landfill construction and operation would meet state water pollution requirements and would not threaten protected species and habitats; and

3. all reasonable measures had been taken to avoid or mitigate wetlands impacts.

RII filed an application in 1990 with the Corps of Engineers ("Corps") for a permit under Section 404 of the Clean Water Act to discharge "dredged or fill material" into waters of the United States, including wetlands.

After a time-consuming review, the Corps denied RII's permit application on the grounds that the company had failed to demonstrate the unavailability of practicable alternatives to waste disposal (e.g., long-hauling solid waste by rail to out-of-county landfills) and that the proposed landfill would cause a significant degradation of wetlands and would pose an unacceptable risk of groundwater contamination. The denial shut down the project, which, by then, had received all required approvals, including a Subtitle D permit.

A federal district judge upheld the Corps' permit denial decision on the grounds that it was not arbitrary, contrary to law or an abuse of discretion.

On appeal, the U.S. Court of Appeals for the Ninth Circuit overturned the district court's order, ruling that the Corps had no authority under Section 404 to insist that a developer obtain a permit from the Corps before constructing a landfill on a site with potential wetlands impacts.

"The construction of a municipal solid waste landfill on a wetlands site is regulated by the EPA and states with solid waste permit programs approved by EPA under RCRA," the opinion said.

The decision represents yet another major setback for the Corps, which has lost several high-profile cases lately. And, as if to add insult to injury, the Ninth Circuit used the Corps' own regulations and words to justify banishing it from the landfill permitting process.

First, noted the appeals court, municipal solid waste does not meet the Corps' regulatory definition of either "dredged material" or "fill material." In fact, the term "solid waste" is a specific exception in the definition of "fill material." When it first issued its rules, the Corps intentionally excluded "the disposal of waste materials such as ... garbage, trash and debris in water. ... The Corps and [EPA] feel that the initial decision relating to this type of discharge should be through the NPDES program." [42 Fed. Reg. 37,122 (1977)]

Second, the opinion continued, the siting, design and construction of a solid waste landfill on a wetlands area is specifically regulated under RCRA by EPA and by states with EPA-approved solid waste permit programs.

"The Corps' interpretation of its jurisdiction under Section 404 ... creates a situation [where] the Corps on one hand and a RCRA-approved state regulatory program on the other, would make the same wetlands-impact determination, using the same criteria, with potentially inconsistent results," the opinion said. "This ... overlap is inconsistent with the Corps' own regulations, which provide that ... state and federal regulatory programs should complement rather than duplicate one another." Indeed, the appeals court pointed out, the Corps, by letter in 1984, conceded authority over "garbage disposal regulation" to EPA under RCRA.

Two years later, the Corps and EPA signed a memorandum of agreement that, by 1991, formally transferred solid waste permitting responsibility to EPA and approved states.