Jump to Content

Weekly Update Volume 30, Issue 17

06/19/2000

LITIGATION

 

red bar graphic  CAA, REMOVAL, SUBJECT MATTER JURISDICTION:

The Ninth Circuit held that under the CAA federal entities cannot remove to federal court state and local government actions to enforce air quality laws. A local California air district filed suit against the United States in state court to recover civil penalties for a U.S. Air Force Base's unauthorized emission of nitrogen oxides into the air. The United States removed the action to federal district court under the federal removal statute. The district court entered a final judgment in favor of the United States based on its holding that the CAA did not waive the United States' sovereign immunity from liability for civil penalties imposed by a state to punish past violations of state and local air quality laws. The case, however, was improperly removed from the state court in the first place. By guaranteeing the right of state and local governments to obtain judicial remedies and sanctions in state and local courts, the 1977 amendments to the CAA necessarily prohibit the removal of actions that are brought by state and local governments pursuant to their own air quality laws. Moreover, although Congress intended to confer upon the federal government a general right of removal under the federal removal statute, it did not intend for the right to apply to actions brought by state and local governments under their own air quality laws. Because the case does not present a federal question for the purposes of establishing federal jurisdiction, the district court lacked subject matter jurisdiction. The district court's judgment, therefore, was vacated, and the case was remanded to the state court. People of the State of California v. United States, No. 99-15388 (9th Cir. June 14, 2000) (12 pp.).

red bar graphic  CERCLA, NPL BOUNDARIES, STATUTE OF LIMITATIONS:

The Ninth Circuit vacated a district court decision that EPA's claims against the owners and operators of the Bunker Hill Superfund site for natural resource damages at the Coeur d'Alene Basin were time-barred. The district court determined that because the basin did not fall within the site's boundary, the limitations period set forth in CERCLA did not apply to EPA's claims for natural resources damages, and, thus, EPA's claims were time-barred under the usual 3-year limitations period for natural resource damages. Jurisdiction to adjudicate the validity of including the basin within the boundaries of the Bunker Hill site NPL listing, however, is vested exclusively in the U.S. Court of Appeals for the District of Columbia. The court, therefore, stayed the proceedings until the D.C. Circuit considers the timeliness and merits of the owners and operators' petition for review of the site designation. United States v. Asarco Inc., No. 98-36247 (9th Cir. June 15, 2000) (7 pp.).

red bar graphic  CERCLA, ALLOCATION OF RESPONSE COSTS, NUISANCE:

The Tenth Circuit issued an order on rehearing granting a petition to clarify factual statements set forth in its May 2, 2000, opinion in which it held that a district court correctly found the former owner of an abandoned refinery responsible for 15 percent of all past and future response costs and damages a subsequent owner incurred and will incur while investigating and remediating the site. In that case, the court did not allocate 15 percent of the response costs to the former owner based on the relative proportion of time the former owner operated the refinery, but rather, on the relative period of time during which the refinery was operated while under the former owner's ownership. An amended opinion was attached to the order. Tosco Corp. v. Koch Industries, Inc., No. 98-6209 (10th Cir. May 26, 2000) (26 pp.).

back to top

red bar graphic  CERCLA, MINNESOTA ENVIRONMENTAL RESPONSE AND LIABILITY ACT (MERLA), CONTRIBUTION, INDEMNIFICATION:

The Eighth Circuit affirmed a district court judgment denying a railroad company's CERCLA, MERLA, and common-law contribution and indemnification claims against a creosote manufacturer for the costs of an environmental cleanup necessitated in part by pollution from the manufacturer's site. Under CERCLA, a private party cannot recover its reasonable response costs from a PRP unless it has complied with the NCP, but the railroad failed to substantially comply with the NCP's public participation and comment requirements in the selection of the remedial action. Further, the state environmental agency's involvement in the railroad's remedy selection does not effectively fulfill the NCP's public participation and comment requirements. Such state involvement is not per se, and it substitutes for participation and comment only where the state agency is extensively involved and the PRP does not dispute the quality or cost of the remedy. Here, the manufacturer consistently asserted that the railroad incurred unnecessary response costs. Moreover, MERLA's six-year statute of limitations barred the railroad's claims under that Act. Although MERLA does not specifically state when a claim for property damage accrues, CERCLA preempts state statutes of limitations for hazardous substances cases and sets the commencement date as the date when the railroad knew or reasonably should have known of the contamination. Nevertheless, under CERCLA §309, the federal commencement date yields to state law if the state limitation is later than the federal date. However, the state commencement date is the same as the federal date, and the railroad knew or should have known about the creosote contamination more than six years before it commenced litigation. In addition, the railroad failed to prove an express or implied legal relationship that would allow a common-law indemnification claim. Likewise, the railroad failed to show a common liability between joint tortfeasors that would allow a common-law contribution claim, and equity did not dictate that the claim should be allowed. Union Pacific R.R. v. Reilly Industries, Inc., Nos. 99-1456, -1871 (8th Cir. June 14, 2000) (23 pp.).

red bar graphic  RCRA, GASOLINE LEAK, CIVIL PENALTY:

A district court upheld civil penalties of $4,746,500 against the owner of a gas station for noncompliance with EPA administrative orders issued after a serious spill from the station. The spill posed a significant health risk and a risk of explosion, and it poisoned the water supply for several families. Additionally, testimony and evidence from a hearing to set the penalty amount indicated that the owner obtained substantial economic benefit from disobeying EPA's orders and failing to assist in the cleanup. While the owner had no past history of any violations, he did not make any good faith efforts to comply with EPA's orders. Finally, significant and credible evidence was presented that the owner of the gas station was a very wealthy man. Taking all these factors into consideration, the maximum penalty sought by EPA is appropriate. United States v. Hill, No. 95-CV-1716(GJD/NAM) (N.D.N.Y. May 30, 2000) (Mordue, J.) (4 pp.).

red bar graphic  ILLINOIS ENVIRONMENTAL PROTECTION ACT (IEPA), PRIVATE RIGHT OF ACTION:

A district court, applying Illinois law, held that a landowner did not have a private right of action under the IEPA to bring contribution claims for the cleanup of a UST. The IEPA contains no express private right of action and the landowner could not establish an implied right of action under the statute. An Illinois appellate court, the only court in the state to address the issue, held that there is no private right of action under the IEPA. Moreover, although the Illinois Supreme Court refused to review the decision, because recent precedent from the court makes it difficult to establish an implied right of action, it has noted that it would imply a private right of action under a statute only if the statute would be ineffective as a practical matter unless such an action were implied. The existing legislative scheme of the IEPA provides for enforcement by the state as well as citizen suits before a board, which more than adequately serves the purpose of the statute so that it is not ineffective absent an implied private right of action. Chrysler Realty Corp. v. Thomas Industries, Inc., No. 00 C 0085 (N.D. Ill. May 30, 2000) (Gettleman, J.) (5 pp.).

back to top

red bar graphic  INSURANCE, DUTY TO DEFEND, POLLUTION EXCLUSION, "SUDDEN AND ACCIDENTAL":

The Tenth Circuit granted in part a petition to clarify an April 11, 2000, decision in which it applied Colorado law and reversed a district court holding that the pollution exclusion clause in one of two insurance policies held by a Colorado sanitation district precluded an insurer's duty to defend the district against a CWA citizen suit arising from the district's discharges to a creek. One policy effective from 1983 to 1986 excludes coverage for pollution discharges, but restores coverage for sudden accidents involving pollutants. Colorado views the phrase "sudden and accidental" in pollution exclusions to be ambiguous. Although the "sudden accident" phrase in the district's policy is not identical to "sudden and accidental," the two clauses are legally indistinguishable. Thus, under Colorado law, the phrase "sudden accidents" would be ambiguous and should be construed in favor of the district. Further, according to Colorado courts, the discharges alleged in the citizen suit complaint could have been unexpected and unintended from the district's point of view. Therefore, the insurer is not excused from its duty to defend because the claims in the citizen suit arguably fall within policy coverage. However, the second policy, effective from 1986 to 1987, does not trigger a duty to defend because an absolute pollution exclusion clause in the body of the text replaces the policy's general exclusion, and the additional exclusion does not contain the ambiguous term "sudden accidents." Blackhawk-Central City Sanitation District v. American Guarantee & Liability Insurance Co., No. 98-1075 (10th Cir. May 31, 2000) (13 pp.).

red bar graphic  INSURANCE, ROCKY MOUNTAIN ARSENAL, ALLOCATION OF ENVIRONMENTAL CLEANUP COSTS, DEFENSE COSTS, ATTORNEYS FEES:

A district court, applying Colorado law, held that the insurer of a manufacturer that contributed to the contamination of groundwater surrounding the Rocky Mountain Arsenal must pay the manufacturer $392,286 in unreimbursed settlement payments, but the insurer need not pay $373,158 of the manufacturer's unreimbursed defense costs. The manufacturer agreed to pay the U.S. Army $6 million and the county water district $200,000 for its share of the response costs. Applying the "time on the risk" method required by Colorado law for allocating liability among multiple insurance policies, the $6.2 million plus interest that the manufacturer paid in settlement is divided by the 13 years that the contamination occurred resulting in $485,560 of insurer liability. Because the total amount of the manufacturer's unreimbursed liability from all insurers is only $392, 286, the insurer's liability is reduced to this amount. Despite the allocation of liability, the manufacturer's unreimbursed defense costs cannot be recovered. Such costs were covered by other underlying insurance policies, but the manufacturer did not submit them to its other insurers for fear of jeopardizing settlement with those insurers. Under such circumstances, the insurer in this case is not liable. Likewise, the manufacturer is not entitled to costs incurred in establishing the liability of other insurers. Under Colorado's allocation of liability, the pick and choose allocation method has been rejected. Thus, settlement payments are no longer set off in calculating an insurer's share of liability of a covered loss among insurers. Therefore, there is no benefit to justify requiring an insurer to pay a share of the attorneys fees and costs incurred by the insured in obtaining settlements. However, the manufacturer may recover its reasonable attorneys fees in seeking recovery from the insurer because the insurer breached its duty under the policy to reimburse the insured for all reasonable expenses incurred at the insurer's request at hearings and trials. Scott's Liquid Gold-Inc. v. Lexington Insurance Co., No. CIV.A. 97-B-107 (D. Colo. May 31, 2000) (Babcock, J.) (10 pp.).

back to top

red bar graphic  INSURANCE, DUTY TO DEFEND, PUBLIC TRUST DOCTRINE, PRORATION OF DEFENSE COSTS:

A California appellate court affirmed in part and reversed in part a lower court judgment determining that an insurer of the San Diego Bay Port District had a duty to defend the district from a citizen suit alleging that the district breached its duties under the public trust doctrine by failing to protect the bay and its animals and vegetation from contamination. When the suit originated, the district tendered the defense to two of its insurers. One insurer accepted, but the other rejected the offer. The accepting insurer eventually prevailed at trial and sued the rejecting insurer for reimbursement of defense costs. The rejecting insurer claimed that the owned property exclusion clause, which excluded coverage for property entrusted to the district for storage or safekeeping, barred coverage because the bay was entrusted to the district for safekeeping. However, the plain meaning of the owned property exclusion indicates that the phrase "entrusted to the insurer for safekeeping" applies to personal property subject to bailment or a similar arrangement. Even if it did apply to public trust property, the storage or safekeeping language indicates coverage is barred only where the insured's task is holding property for its return to the owner in an unaltered condition. The state did not entrust the bay to the district for mere safekeeping, but for, among other reasons, the promotion of commerce, navigation, fisheries, and recreation. Further, an "excess only"  clause in the rejecting insurer's policy did not transform its policy into an excess policy and, thus, eliminate any duty to defend. The rejecting insurer's policies were not umbrella policies, the district had no other insurance for the 11 years the rejecting insurer covered it, and the rejecting insurer's policies required it to defend and indemnify the district immediately upon a covered event. In addition, equitable contribution principles require proration of the defense costs. Pacific Indemnity Co. v. Bellefonte Insurance Co., No. D031786 (Cal. Ct. App. May 24, 2000) (17 pp.).

red bar graphic  FEDERAL POWER ACT (FPA), "HEADWATER BENEFITS," WATER POWER:

The Seventh Circuit reversed a lower court decision and held that the private operators of hydropower projects at federally owned dams on the Lower Fox River in Wisconsin own the rights to "headwater benefits" realized at their projects as a consequence of  improvements made to the Menasha Dam's storage-and-release capability in 1937. FERC, therefore, may not assess charges to the operators for past or future headwater benefits attributable to the dam located upstream from the operators' projects. The plain language of an 1872 deed between the operators' predecessor-in-interest and the United States reserved to the predecessor-in-interest all actual and potential water power rights along the Lower Fox River, including those that would later be dubbed headwater benefits under the FPA. The United States only took property necessary for the purpose of navigation. The fact that headwater benefits were later identified as a discrete concept and separated from the comprehensive notion of water power under the FPA does not undermine the effect of conveyances made many years before its enactment. Moreover, the deed did not limit the operators' rights to water power available only at their individual dam sites, but rather extends their rights to the upstream Menasha Dam. City of Kaukauna v. Federal Energy Regulatory Commission, No. 99-1770 (7th Cir. June 6, 2000) (20 pp.).

back to top

red bar graphic  TAKINGS, TEMPORARY DEVELOPMENT MORATORIUM:

The Ninth Circuit dismissed landowners' takings claims against the Lake Tahoe Basin regional planning agency. The agency's issuance of a temporary development moratorium for environmentally sensitive lands surrounding the basin until adoption of a final land-use plan was not a categorical taking because it did not deprive the landowners of all of the value or use of their property. Moreover, the court refused to conceptually sever each of the landowners' fee interest into discrete temporal segments, because to do so, the court would risk converting every temporary planning moratorium into a categorical taking. In addition, the agency could not be held liable under 42 U.S.C. §1983 during the period in which its final land-use plan was enjoined from being enforced under a court order. The agency's actions were not the actionable cause of any taking that may have occurred during this time, as it was the injunction, rather than the land-use plan, that prohibited the agency from approving any development project and from accepting permit applications. Further, the district court properly held on the merits that the landowners' §1983 claims challenging the agency's current land-use plan were time-barred. Although the court previously held that the claims were not time-barred, the district court did not violate the law-of-the-case doctrine because the previous opinion was clearly erroneous and would be manifestly unjust if enforced. Tahoe Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, Nos. 99-15641, -15771 (9th Cir. June 15, 2000) (33 pp.).

red bar graphic  TAKINGS, NATIVE AMERICANS, MINERAL RIGHTS:

The Federal Circuit reversed a lower court and held that the U.S. Army Corps of Engineers violated the Fifth Amendment by appropriating minerals from land near the Jemez Canyon Dam and Reservoir in New Mexico in connection with a dam reconstruction project. A 1978 Act of Congress declared the 2,240 acres of land in question, including all mineral rights, to be held in trust by the United States for the benefit of a Native American tribe in Sandoval County, New Mexico. Although the Act was subject to the terms of a 1952 public land order that withdrew the lands at issue from appropriation under public land laws and, therefore, reserved certain rights to the United States, it did not reserve in the United States the right to use minerals from that land. Pueblo of Santa Ana v. United States, No. 99-5105 (Fed. Cir. June 1, 2000) (6 pp.).

red bar graphic  NEPA, NATIVE AMERICANS, WHALING:

The Ninth Circuit held that in granting a Native American tribe authorization to resume whaling, NOAA, the National Marine Fisheries Service, and other federal defendants violated NEPA by preparing an EA that was both untimely and inadequate. Although the federal defendants issued an EA and a finding of no significant impact (FONSI) for the whaling proposal, they did not consider the potential environmental effects of the proposed action until long after they had already committed in writing to support the tribe's whaling proposal. In addition, because of their prior written commitment to the tribe and concrete efforts on the tribe's behalf, it is likely that the EA was slanted in favor of finding that the whaling proposal would not significantly affect the environment. Consequently, the federal defendants failed to take a hard look at the environmental consequences of their actions in violation of NEPA. The court, therefore, ordered the federal defendants to set aside the FONSI, to suspend the agreement, and to prepare a new EA. Metcalf v. Daley, No. 98-36135 (9th Cir. June 9, 2000) (19 pp.).

red bar graphic  TITLE VI OF THE CIVIL RIGHTS ACT, HOUSING AND COMMUNITY DEVELOPMENT ACT (HCDA), LIKELIHOOD OF SUCCESS ON THE MERITS:

The Second Circuit held that environmental groups did not show that New York City's plan to sell or bulldoze lots containing community gardens would have an impermissible adverse impact on minority communities. The groups opposed the city's plan claiming that it would violate EPA regulations promulgated to implement Title VI of the Civil Rights Act, which prohibits discrimination on the basis of race or national origin. The groups also claimed that the city's plan would violate the HCDA under which the city received federal funding to assist residents in creating and maintaining gardens on the lots. The groups failed to show the causal connection between a facially neutral policy and a disproportionate, adverse impact on minorities that is necessary to establish a prima facie case of adverse disparate impact. Additionally, the groups failed to show, using an appropriate measure, that the city's actions would cause a disparate effect on similarly situated people to the detriment of a protected group. Further, the "appropriate measure" used by the environmental groups, that most community gardens are in minority neighborhoods so their downsizing would entail closing community gardens in minority neighborhoods, was inadequate to allow the court to ascribe significance to any alleged disparate impact of the city's actions. The groups failed to show that the diminishment of open space in minority communities determines the impact of the city's actions on those communities compared with the impact of those actions on non-minority communities. Finally, the city's plan to sell the community gardens in order to build new housing and foster urban renewal constitutes a substantial legitimate justification for their actions. The groups also failed to show a likelihood of success on the merits of their HCDA claims. The court declined to decide whether or not a private right of action exists under Title VI. New York City Environmental Justice Alliance v. Giuliani, No. 99-7713 (2d Cir. May 31, 2000) (9 pp.).

back to top

red bar graphic  NEW YORK CITY, WATERSHED REGULATION, SUBSURFACE SEPTIC SYSTEMS:

A New York trial court enjoined New York City's environmental agency from implementing a September 18, 1998, memorandum allowing slopes that are greater than 15 percent but less than 20 percent to be modified to 15 percent or flatter through the use of fill in order to meet the city's slope requirements for subsurface septic systems. The agency's memorandum is contrary to the provisions of the city's watershed regulations because the regulations do not allow for the modification of a slope greater than 15 percent to meet the 15 percent requirement. Moreover, the agency's decision to permit slopes to be modified to reach the 15 percent maximum may have a significant effect on the environment. Thus, the memorandum is subject to New York's State Environmental Quality Review Act (SEQRA). The agency, therefore, is enjoined from implementing the memorandum until it complies with SEQRA. The organizations challenging the agency's actions, however, lacked standing to bring forward a City Administrative Procedure Act claim. Riverkeeper v. New York Department of Environmental Protection, No. QDS:52313162 (N.Y. Sup. Ct. May 26, 2000) (Dye, J.) (6 pp.) (Petitioners' counsel included Elizabeth Keane, legal intern, and Karl Coplan of the Pace Environmental Litigation Clinic in White Plains NY).

red bar graphic  OSHA STANDARDS, DUE PROCESS, LEAD EXPOSURE:

The Seventh Circuit denied a construction company's petition to review an administrative law judge's (ALJ's) order upholding a nine-item citation against the company for violating OSHA standards for lead exposure in construction work. Despite the company's allegations that the OSHA inspector failed to follow certain statutory and regulatory requirements concerning notice, the company's due process rights were not violated. The Due Process Clause requires that the company be given notice and an opportunity to respond. Here, as soon as the inspector arrived on site, he notified the company that he was an OSHA inspector and that he was there to conduct an investigation. The company also had an opportunity to defend itself against the nine-item citation. The court also refused to review the order based on the company's claim that it did not violate any of the lead safety standards for which it was charged because the ALJ's decision was based on credibility determinations. Sierra Resources, Inc. v. Herman, No. 99-2492 (7th Cir. May 30, 2000) (9 pp.).

red bar graphic  FIFRA, SUSPENSION ORDER, "OFFER FOR SALE":

The EPA Environmental Appeals Board (EAB) held that an administrative law judge (ALJ) erroneously changed on equitable grounds the effective date of a suspension order for rotenone in a case involving a pesticide company that allegedly offered for sale, sold, and distributed pesticide products containing rotenone in violation of the suspension order. After the company received EPA's notice of intent to suspend (NOITS) pesticide products containing rotenone, it could have prevented the NOITS from becoming a suspension order by requesting a hearing within 30 days of the NOITS. Instead, the company submitted inquires to EPA, which failed to respond due to government shutdowns. Given EPA's failure to respond, the ALJ concluded that the suspension order's effective date should be the date of the company's actual notice of the suspension order's issuance. The ALJ then dismissed those counts that occurred before that date and assessed a $65,000 civil penalty against the company for the remaining counts. The ALJ, however, lacked discretion to alter the suspension order's effective date. The suspension order's effective date is determined by FIFRA §3(c)(2)(B)(iv), which does not provide for the consideration of equitable factors. Equitable factors are only relevant to the issue of penalties. The ALJ's dismissals were therefore reversed. The EAB, however, did not reverse the dismissal of one count because the evidence failed to demonstrate that a price quote by the company was sufficiently definite and explicit to constitute an "offer for sale" under FIFRA. Taking into consideration equitable factors, the EAB assessed an additional $25,000 civil penalty against the company for the counts erroneously dismissed by the ALJ. In re Tifa Ltd., FIFRA Appeal No. 99-5 (EPA EAB June 5, 2000) (30 pp.).

back to top

red bar graphic  FIFRA, UNREGISTERED AND MISBRANDED PESTICIDES, PENALTY ASSESSMENT:

The EPA Environmental Appeals Board upheld an administrative law judge's (ALJ's) decision to impose a $92,193 civil penalty against a pesticide company for 98 FIFRA violations involving the sale or distribution of unregistered and misbranded pesticides. Under FIFRA §12(a)(1)(A) and (E), each sale or distribution of an unregistered or misbranded pesticide is grounds for the assessment of a separate penalty. Here, EPA alleged that the company engaged in 55 separate sales or distributions of unregistered pesticides and 43 separate sales or distributions of misbranded pesticides, and the company failed to raise any genuine issues of fact to refute those allegations. In addition, the ALJ's imposition of a $92,193 civil penalty was affirmed in its entirety. The ALJ properly applied the ability-to-pay factor of the penalty calculation. While the company successfully refuted EPA's assertion that it could pay the full $200,000 proposed penalty, it did not convince the ALJ that it could not pay any penalty. Moreover, the ALJ properly applied the FIFRA Enforcement Response Policy's 4 percent of average gross annual income guideline in crafting a penalty, and it properly used the company's most recent financial data in making that decision. Similarly, the ALJ did not err in determining the company's culpability. In re Chempace Corp., FIFRA Appeal Nos. 99-2, -3 (EPA EAB May 18, 2000) (40 pp.).

Copyright© 2000, Environmental Law Institute, Washington, D.C. All rights reserved

THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register.

red bar graphic AIR:

  • EPA granted full approval to Montana's CAA operating permit program. 65 FR 37049 (6/13/00).
  • EPA approved West Virginia's CAA §§111(d)/129 plan for hospital/medical/infectious waste incinerators. 65 FR 37046 (6/13/00). 

red bar graphic DRINKING WATER:

  • EPA withdrew its final rule revising the interim enhanced surface water treatment rule, the stage 1 disinfectant and disinfection byproducts rule, and state primacy requirements to implement the SDWA amendments that was published on April 14, 2000 (65 Fed. Reg. 20304) because the Agency received adverse comments.  65 FR 37052 (6/13/00).
  • EPA reopened the comment period for the proposed rule revising the interim enhanced surface water treatment rule, the stage 1 disinfectant and disinfection byproducts rule, and state primacy requirements to implement the SDWA amendments. 65 FR 37092 (6/13/00). 

back to top

red bar graphic ENDANGERED SPECIES: 

  • FWS and NOAA issued a draft policy for evaluating conservation efforts when making listing decisions under the ESA. 65 FR 37102 (6/13/00). 

red bar graphic  HAZARDOUS AND SOLID WASTES:

  • EPA approved portions of the West Virginia municipal solid waste management permit program that were not previously approved in the March 29, 2000, Federal Register. 65 FR 36792 (6/12/00). 
  • EPA entered into a proposed administrative settlement under CERCLA §122(h)(1) in connection with the Lancaster Plating site in Lillington, N.C. 65 FR 36900 (6/12/00). 
  • EPA issued the twelfth update of the Federal Agency Hazardous Waste Compliance Docket pursuant to CERCLA §120(c). 65 FR 36993 (6/12/00). 
  • The Agency for Toxic Substances and Disease Registry announced those sites for which it has completed public health assessments during the period from January through March 2000. 65 FR 37393 (6/14/00). 
  • EPA entered into a proposed administrative settlement under CERCLA in connection with the San Fernando Valley Pollock Superfund site in California. 65 FR 37549 (6/15/00). 
  • EPA entered into a proposed administrative settlement under CERCLA §122(g) in connection with the Tulalip Landfill Superfund site in Marysville, Wash. 65 FR 37782 (6/16/00). 
  • EPA proposed to execute a prospective purchaser agreement under CERCLA in connection with the Solar Paints & Varnishes Superfund site in Milwaukee, Wis. 65 FR 37781 (6/16/00). 
  • EPA proposed to issue a site-specific rule to implement a pilot project under the Project XL program that would provide regulatory flexibility under RCRA for the International Business Machines Corporation semiconductor manufacturing facility in Essex Junction, Vt. 65 FR 37739 (6/16/00). 
  • EPA announced that it is requesting comments on a proposed Project XL Final Project Agreement for the International Business Machines Corporation semiconductor manufacturing facility in Essex Junction, Vt. 65 FR 37780 (6/16/00). 

red bar graphic  NATURAL RESOURCES:

  • President Clinton issued a proclamation establishing the Canyons of the Ancients National Monument. 65 FR 37241 (6/13/00).
  • President Clinton issued a proclamation establishing the Cascade-Siskiyou National Monument. 65 FR 37249 (6/13/00).
  • President Clinton issued a proclamation establishing the Hanford Reach National Monument. 65 FR 37253 (6/13/00).
  • President Clinton issued a proclamation establishing the Ironwood Forest National Monument. 65 FR 37259 (6/13/00).

red bar graphic  PESTICIDES:

  • EPA announced the availability of the revised risk assessments and related documents for the organophosphate pesticide dircrotophos. 65 FR 37371 (6/14/00).
  • EPA announced the availability of a draft pesticide registration notice entitled Disposal Instructions on Residential/Household Use Product Labels. 65 FR 37383 (6/14/00). 

back to top

red bar graphic  TOXIC SUBSTANCES:

  • EPA announced the availability of a draft guidance document for the dioxin and dioxin-like compounds category that is subject to reporting under EPCRA §313 and Pollution Prevention Act §6607. 65 FR 37548 (6/15/00).
  • EPA announced that it issued a testing consent order that incorporates an enforceable consent agreement entered into with several chemical companies in which they agreed to perform toxicity testing and physiologically based pharmacokinetics and mechanistic testing that is intended to satisfy the toxicological data needs identified in a proposed test rule concerning the effects of 1,1,2-trichloroethane (TCE).65 FR 37550 (6/15/00).

red bar graphic  WATER QUALITY:

  • EPA issued a notice that describes its ongoing effluent guidelines development efforts under CWA §304(m) and that proposes the Agency's plans for developing new and revised effluent guidelines. 65 FR 37783 (6/16/00).
  • EPA received a petition from Massachusetts requesting a determination that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for Buzzards Bay. 65 FR 37788 (6/16/00).
  • EPA announced that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the waters of the Greater Huntington-Northport Bay Complex in Suffolk County, N.Y. 65 FR 37385 (6/14/00). 

red bar graphic  DOJ NOTICE OF SETTLEMENT:

  • Tex Tin Corp. v. U.S., No. G-96-247 (S.D. Tex. June 5, 2000) (a settling CERCLA defendant and its related and affiliated entities must pay nearly $1 million in past U.S. response costs incurred at the Tex Tin Superfund site in Texas City, Tex., must pay $225,000 to resolve federal and state natural resource damage claims, and must pay $300,000 to fund a custodial trustee for the care and maintenance of the property), 65 FR 37410 (6/14/00).

Copyright© 2000, Environmental Law Institute, Washington, D.C. All rights reserved  

IN THE STATES

red bar graphic ALABAMA

Dept. of Envtl. Management

Proposed Regulations-Water Quality

Proposed Regulations-Air

  • Proposed revisions to Division 3 of the Administrative Code will incorporate NSPS and NESHAP revisions from Sept. 1999 through March 2000. Other provisions affected include Chapter 335-3-1 (clarification of definition of "New Source") and Chapter 335-3-16, which is being revised to seek final approval of the state's Title V Major Source Operating Permit Program. Written comments due June 19. For details,  see http://www.adem.state.al.us/propdiv3.html

Public Notices–Permit Applications 

back to top

red bar graphic  ALASKA

Dept. of Envtl. Conservation

Cruise Ship Regulation

Proposed Regulations-Drinking Water, Wastewater Treatment

Nonpoint Source Water Pollution

red bar graphic ARIZONA

Dept. of Envtl. Quality

Draft Regulations-UST State Assurance Fund

Public Water Systems

Superfund Program-Proposed Registry Inclusions, Prospective Purchaser Agreements

back to top

red bar graphic CALIFORNIA

Air Resources Board

Proposed Regulations

Reformulated Gasoline

Alternative Fuels Workshop

  • Regarding possible amendment of alternative fuel regulations governing LPG and CNG. Meeting scheduled for June 21 in Sacramento.

Dept. of Toxic Substances Control

Draft Pollution Prevention Report and SB 1916 2-Year Workplan

South Coast Air Quality Management District

Final Regulation-Air Toxics

Draft Air Toxics Control Plan

red bar graphic COLORADO

Water Quality Control Commission

Proposed Regulations

red bar graphic  CONNECTICUT

Dept. of Envtl. Protection

Proposed Aquifer Protection Land Use Regulations

back to top

red bar graphic  DELAWARE

Proposed Regulations-Air

  • Proposed revisions to Regulation No. 5 (Operating Permits) will remove inconsistencies with U.S. EPA Title V requirements under the CAA. Public hearing June 26.

red bar graphic FLORIDA

Dept. of Envtl. Protection

New Legislation-Air Quality

General Permit-Temporary Agricultural Activities

  • Proposed rule will develop permitting criteria for horticultural, seasonal crops that are harvested in one growing season. No additional rule development workshops are currently scheduled. 

Proposed Regulations-Surface Water Classification

  • Proposed rule amendment would reclassify Prospect Lake in Broward County. 

Proposed Regulations-Drinking Water

  • Proposed amendments will incorporate revisions to federal standards. 

Proposed Regulations-Air

  • Correction of technical errors in standards governing sulfur storage and handling facilities.

State Revolving Fund-Drinking Water

  • Proposed rule amendments would enable funding of additional wastewater management systems.
  • Public workshop June 28 to discuss DEP's recommendations regarding intended use of fiscal year 2001 SDWA appropriations and state matching funds. 
  • July 27 workshop regarding proposed revisions to the Department's Standard Operating Procedures for Field and Laboratory Operations. The Department proposes to delete all laboratory procedures from the document. 
  • June 23 meeting to discuss methodology for including impaired waters on a §303(d) list.
  • July 13 workshop to discuss proposed amendments to Chapter 62-212, FAC, regarding air emissions, to correct errors. 

Wastewater State Revolving Fund

  • Public hearing on June 29 will concern adoption of fiscal year 2001 Wastewater State Revolving Fund priority list; about $2.5 million will be available.

Stormwater Loan Priority List

  • Subject of June 30 public hearing. 

Southwest Florida Water Management District

Proposed Regulation

  • Concerns adoption by reference of Fla. Rule 40E-4.091, regarding side slope requirements for water retention/detention and stormwater attenuation areas.

Proposed Regulation-Wetlands, Surface Waters

  • Amendments would establish time frame within which the District must act in evaluating a Petition for a Formal Determination of Wetlands and Other Surface Waters. Public hearing, if requested, will be held after subsequent notice. 

back to top

red bar graphic GEORGIA

Dept. of Natural Resources

Proposed Regulations-Air Quality

  • Proposed amendments to Chapter 391-3-1, Procedures for Testing and Monitoring Sources of Air Pollutants, and amendments to the SIP for attaining the ozone standard in the Atlanta Ozone Nonattainment Area. Public hearing July 12; will be taken up at July 26 meeting of Board of Natural Resources. For details, see http://www.ganet.org/dnr/environ/

Air Permit Applications

NPDES Permit Applications

Hazardous Waste Permit Application

red bar graphic IDAHO

Division of Envtl. Quality

Permit Applications

red bar graphic ILLINOIS

Pollution Control Board

Proposed Procedural Rules

Proposed Revisions-Corrective Action Regulations

  • Proposed revisions to Part 742 rules (the "TACO" regulations) accepted for hearing May 18. At least two substantive amendments, concerning the addition of MTBE as a contaminant to be tested for, and the replacement of existing Subpart J provisions dealing with deed restrictions as institutional controls. The new instrument will be entitled "Environmental Land Use Controls." See http://www.ipcb.state.il.us/news/news.htm

Envtl. Protection Agency

Strategic Planning Process

back to top

red bar graphic INDIANA

Dept. of Envtl. Management

Final Regulations-Water

Proposed Regulations-Drinking Water

Proposed Regulations-Industrial Waste

red bar graphic  LOUISIANA

Dept. of Envtl. Quality

Proposed Regulations-Fees

  • Revisions to LAC 33:V.625, 630, 635, 660, and 717, Remedial Action Plans; proposed repeal of certain regulations dealing with control of emissions from motor vehicles and related fees; proposed amendments to LAC 33:XV.2508, dealing with fee determination. For further information, including copies of the proposed regulations and comment information, see http://www.deq.state.la.us/planning/regs/addition/2000

Proposed Regulations-Solid Waste

  •  Proposed revisions to LAC 33:VII.Chapter 105 would simplify standards for waste tire generators, transporters, and recyclers, and implement a fee required by Act 1015 (1999) on off-road tires for their disposal and/or recycling. Comments are due by July 3. Details at http://www.deq.state.la.us/planning/regs/index.htm

Final Regulations-RECAP 

Permit Applications

back to top

red bar graphic MARYLAND

Dept. of the Environment

Public Meetings/Hearings

Water Quality Standard-Triennial Review

red bar graphic MASSACHUSETTS

Dept. of Envtl. Protection

Proposed Regulations-Air

Enforcement Actions

red bar graphic  MICHIGAN

Dept. of Envtl. Quality

Great Lakes Water Quality Report

Clean Corporate Citizen Designations

Draft CWA §303(a) Report

Management Team Public Meetings

Final Regulations-Air

Final Regulations-Wetlands Permitting

Proposed Regulations-Wetlands

Permit Applications-Air

  • Northern Oaks RDF, for a Renewable Operating Permit. 
  • Venture Industries, for an air permit.
  • Michigan Sugar Co., for a Renewable Operating Permit. 
  • City Environmental Services, for a Renewable Operating Permit.
  • Georgia-Pacific Corp., for a Renewable Operating Permit.  
  • Alchem Aluminum, Inc., for a permit to install a facility to be located in Buena Vista. 
  • Stone Container Corp., for permit for installation and operation of air pollution control systems at facility in Ontonagon.
  • KM Power Company, for installation of a 550 megawatt natural gas-fired power plant in Jackson. 
  • Viking Energy, Lincoln, for increase in allowed tire-derived fuel usage rate.
  • Tuscarora, Inc., for increased emissions from an existing polystyrene foam manufacturing facility in Chesaning.
  • Lafarge Corporation, for a change in raw material mix and increases in HCl emissions from cement kilns in Alpena.
  • Cadillac Renewable Energy, for operation of a utility plant in Wexford County.
  • Viking Energy of McBain, for operation of an electric utility.
  • Midland Township, for operation of a municipal solid waste landfill.
  • Central Michigan University, for operation of a power plant.
  • Detroit Edison, Monroe Power Plant.
  • Technisand, Inc., Berrien County, for sand mining operation.
  • MD Enterprises, Grand Rapids, for surface coating operation.
  • Thompson Marine Products, for boat manufacturing facility in Saginaw County.
  • Paulstra CRC Cadillac Division, Wexford County, for manufacturing of automotive parts.
  • Wisconsin Electric Power Company, for Preque Isle Power Plant, Marquette County. 
  • LTV Steel Co., Ferndale, for Renewable Operating Permit. 
  • Genesee Power Station Limited Partnership, for Renewable Operating Permit. 

For details, see http://www.deq.state.mi.us/aqd

back to top

red bar graphic MINNESOTA

Pollution Control Agency

Permit Applications, Other Notices

  • For solid waste disposal facility permit for Northshore Mining Co., Silver Bay. Comments due July 7.
  • For reissued NPDES and SDS permit for the City of Albertville wastewater treatment facility. 
  • For reissued NPDES and SDS permit for the City of Mapleton wastewater treatment facility. Comments due July 12.
  • For reissued NPDES and SDS permit for the City of Hector wastewater treatment facility. Comments due July 3. 
  • For reissued NPDES and SDS permit for Northern States Power, Mankato. Comments due July 10. 
  • For reissued NPDES and SDS permit for the City of Rushmore. Comments due July 6.
  • For an air permit to Hood Flexible Packaging. Comments due July 5.
  • For an air permit to University of Minnesota. Comments due July 3. 
  • For an air permit to Koch Materials, Savage. Comments due July 13.
  • For an air permit to Pearl Baths, Brooklyn Park. Comments due July 10.

For details, see http://data.pca.state.mn.us/cgi-bin/whatsnew.pl

red bar graphic  MISSOURI

Dept. of Natural Resources

Water Pollution Control-Permit Applications

red bar graphic MONTANA

Dept. of Envtl. Quality

TMDLs-§303(d) Impaired Waterbodies List

  • A total of 17 meetings were held through May 18 to receive public comment on the draft §303(d) report. Comments are due June 19. The data report and waterbody data listings are available at http://nris.state.mt.us/wis/environet

red bar graphic NEW JERSEY

Dept. of Envtl. Protection

Current DEP Bulletin (Permit Applications; Proposed Regulations)

Greenhouse Gas Emissions

back to top

red bar graphic NEW YORK

Dept. of Envtl. Conservation

Environmental Notice Bulletin (Permit Applications)

Permit Applications

Environmental Justice Advisory Group

Utility Enforcement Action

red bar graphic  NORTH CAROLINA

Dept. of Envt. and Natural Resources

Coal Tar Sites-Cleanup Agreement

Division of Air Quality Penalty Assessments

DENR Enforcement Data

Wood Chip Mills-Advisory Report

red bar graphic OHIO

Envtl. Protection Agency

Permit Applications

red bar graphic OKLAHOMA

Dept. of Envtl. Quality

Draft Source Water Assessment and Protection Program Document

back to top

red bar graphic OREGON

Dept. of Envtl. Quality

Proposed Regulations-Open Burning

Water Quality Permit Applications

Dept. of Agriculture

Pesticide Use Reporting System; Report

red bar graphic PENNSYLVANIA

Dept. of Envtl. Protection

Final Regulations

Proposed General NPDES Permit Revision

Proposed Envtl. Quality Board Policy for Processing Petitions

  • Regarding petitions for redesignation of streams under Chapter 93 (water quality standards) and the Clean Streams Law (35 P.S. §§691.1-691.1001). 

Draft Technical Guidance Documents

red bar graphic SOUTH CAROLINA

Dept. of Health and Envtl. Control

Permit Application Notices

back to top

red bar graphic  TENNESSEE

Dept. of Environment and Conservation

Proposed Regulations-Water Quality-Fees

Proposed Regulations-Dam Inspection/Construction

Grant Availability-Recycling Marketing

Permit Applications

red bar graphic  TEXAS

Natural Resource Conservation Commission

Final Regulations

  • May 31, the Commission adopted federal Tier II emissions for cars, trucks, and utility vehicles as an alternative to California emission standards. 

Proposed Regulations

Permit Hearings

red bar graphic  UTAH

Dept. of Envtl. Quality

Permit Applications

back to top

red bar graphic VIRGINIA

Dept. of Envtl. Quality

Proposed TMDL

General Permit-Air Quality

Proposed Regulations-Air Quality

Solid Waste Landfills

Proposed General Permit

Permit Applications

red bar graphic  WASHINGTON

Dept. of Ecology

Adopted Regulations

Proposed Regulations

Preproposal

back to top

red bar graphic WEST VIRGINIA

Dept. of Envtl. Protection

Public Notice Bulletin (Permit Applications, Proposed Regulations)

red bar graphic WISCONSIN

Dept. of Natural Resources

Public Hearing and Meeting Schedule