An interesting case involving the interplay of the Clean Water Act (CWA) and RCRA highlights the complexity of sites that trigger multiple environmental statutes. The U.S. District Court of Maryland in Sherrill, et al. v. The Mayor and the City Council of Baltimore, 2014 WL 3555956 ruled that an NPDES Construction Storm Water Permit preempted a RCRA enforcement action. The Court ruled that the RCRA action sought remedies which would duplicate what had already been required under the NPDES permit.
The case involves property associated with the City of Baltimore’s effort to revitalize its waterfront. The site in question was a former chemical manufacturing plant with historical solvent contamination.
The City has a redevelopment agreement with a casino operator to construct a new casino on the property. The City has also placed the property into Maryland’s Voluntary Action Cleanup Program (Maryland’s brownfield cleanup program) which resulted in the development of a voluntary cleanup plan for the property.
The casino operator complied with Clean Water Act requirements by securing a NPDES General Construction Storm Water Permit for the site. The storm water permit contains requirements to manage soil and runoff from the property. A key term of the permit was that the storm water management plan (SWP3) incorporated requirements from the Voluntary Cleanup Plan for the property.
Local residents opposed the casino and brought suit challenging the development plan. Residents claimed that construction of the casino exacerbated pre-existing contamination on the property in violation of Section 6972 of RCRA.
The casino operator argued that the RCRA action was preempted by the existence of the NPDES General Construction Storm Water permit under RCRA’s anti-duplication provision which states:
nothing in [this Act] shall be construed to apply to (or to authorize any State, interstate, or local authority to regulate) any activity or substance which is subject to the [Clean Water Act]…except to the extent that such application (or regulation) is not inconsistent with the requirements of such Acts. See, 42 U.S.C. 6905(a)
At issue was whether the existence of the NPDES permit terms requiring management of soil and storm water runoff rendered any potential relief available under RCRA duplicative.
The District Court held that the CWA storm water discharge permit triggered the "anti-duplication" provisions of RCRA and therefore shielded the casino operator from any RCRA liability. The Court held that the storm water permit legally required implementation of the casino operator’s storm water management plan (SWP3). The SWP3 incorporated that Voluntary Cleanup Plan. Therefore, the cleanup plan, in reality, was no longer voluntary.
The Court held that the SWP3 activities to manage soil and runoff were the same remedies that would be available to plaintiffs under RCRA. Therefore, RCRA’s anti-duplication provision was triggered.
The Court’s ruling is interesting in its conclusion that the remedies available under RCRA would be the same type of remedies currently required under the NPDES storm water permit. SWP3 govern management of surface soils to protect surface waters. RCRA can require cleanup of contaminated soils at depth and protection of ground water.
The incorporation of the Voluntary Action Program cleanup plan is a unique fact to this case. The court only discusses the incorporation of the cleanup plan in cursory fashion. Was the court stating that if the casino operator failed to address soil contamination at depth or contaminated groundwater as called for under the cleanup plan it would be in violation of its NPDES storm water permit?
It would appear that the answer must be "yes" in order to support the Court’s ruling that the RCRA anti-duplication provision was triggered.