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Weekly Update Volume 30, Issue 24

08/28/2000

LITIGATION

red bar graphic TSCA, PCBs, STANDING:

The Fifth Circuit dismissed in part and remanded in part several petitioners' challenges to EPA's final rule concerning the use and disposal of PCBs. In reviewing the challenges, the TSCA §19(c)(1)(B)(I) substantial evidence standard of review applies only to challenges of an EPA-allowed use of PCBs. Otherwise, the arbitrary and capricious standard applies to challenges of an EPA rule restricting or prohibiting use of PCBs. Applying this standard, EPA did not arbitrarily or capriciously enact in the rule provisions for authorization of the storage of a PCB article intended for reuse, decontamination of painted surfaces, and decontamination and distribution of contaminated concrete. The record amply supports EPA's decision to strengthen the "storage for reuse"  regulations to prevent practices that pose an unreasonable risk to health and the environment. Parties need not use grit/steel shot cleaning for paint decontamination because the rule allows the standard to be met by the cleaning methods identified in the record. And the record shows that concrete poses particular challenges and requires certain cleaning requirements because of its porousness. Similarly, EPA's decision not to exclude small transformers containing PCBs within the regulatory assumption PCB rule was not arbitrary and capricious because the petitioner challenging the exclusion did not introduce evidence supporting the exclusion of small transformers from classification as PCB transformers. However, EPA provided insufficient rationale for its failure to explain why, after specifically requesting comments from the regulated community, it did not adopt a national variance from its PCB storage for reuse requirements for electric utilities. EPA's specific request for comments on the appropriateness of a national variance and the numerous comments that EPA received, required it to give reasons for declining to promulgate a national variance. Therefore, the storage for reuse requirements are remanded so that EPA can provide a reasoned statement for why it did not grant a national variance. Likewise, EPA admitted that it promulgated the final rule before completion of a comprehensive assessment of the non-cancer effects of PCBs. Therefore, the final rule's carcinogenity estimate is remanded for assessment and reconsideration in light of the completed study. In addition, because an environmental group did not demonstrate injury-in-fact, it lacks associational standing to challenge provisions in the rule that permit the use of PCB bulk product waste as daily landfill cover or as asphalt road beds. The group's individual members could not establish that the PCB bulk product rule would lead to any direct harm to themselves. Central & South West Services Inc., v. United States Environmental Protection Agency, No. 98-60495 (5th Cir. Aug. 15, 2000) (26 pp.).

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red bar graphic NEPA, EIS, DIRECT IMPACTS, INDIRECT IMPACTS, CUMULATIVE IMPACTS:

A district court held that the U.S. Army Corps of Engineers violated NEPA when it failed to conduct an EIS prior to permitting three casinos on the Mississippi coast. Mississippi law requires casinos to be located on floating vessels, and because the casinos at issue here would have an impact on navigable waters, they were required to apply to the Corps for a CWA §404 permit. After completing EAs for the casinos, the Corps concluded that the casinos would have no significant impact and, thus, issued the necessary permits. The Corps, however, failed to take a hard look at the direct impacts that the casinos would have on wetlands, non-vegetated waterbottoms, and the intake of larvae and eggs of aquatic species into casino sump pumps. Further, the Corps failed to analyze an upland development adjacent to one of the casinos, which resulted from and was entirely conditional on the adjacent casino. Similarly, the Corps failed to consider the indirect impact of the growth-inducing effects of the casinos, especially since the economic development of the region is a proposed goal of the casino projects. In addition, the Corps' EAs failed to adequately analyze the cumulative impacts of the casino development along the Mississippi coast. Therefore, because of the controversy surrounding the development of the casinos and because of the significant cumulative impacts of casino development, the Corps must prepare an EIS for the casinos. Friends of the Earth, Inc. v. United States Army Corps of Engineers, Nos. CIV. A. 98-0801 et al. (D.D.C. Aug. 10, 2000) (Friedman, J.) (15 pp.).

red bar graphic NEPA, TIMBER SALES, SUPPLEMENTAL EIS (SEIS), SUPPLEMENTAL INFORMATION REPORTS (SIRs):

The Ninth Circuit held that although the U.S. Forest Service violated NEPA when it failed to prepare an SEIS necessary for certain timber sales in the Nez Perce National Forest in Idaho, the Forest Service's subsequent preparation of a new SIR and other documents eliminates the need to enjoin the timber sales. In 1987, the Forest Service properly completed a forest plan and EIS for the forest. Regarding the sales at issue, the Forest Service violated NEPA by failing to timely prepare, or sufficiently consider and evaluate the need for, an SEIS for the timber sales in light of new information that arose since the original 1987 EIS for the forest. The new information addressed the Forest Service's listing of seven new species as sensitive and its published recognition of the inadequacy of the old growth and snag standards for the forest, but there is no evidence in the record that before this litigation the Forest Service ever considered the seven new sensitive species designations or the inadequacy of the snag and old growth standards. When confronted with this information it was incumbent on the Forest Service to evaluate the existing EIS and determine if it required supplementation. However, after commencement of litigation, the Forest Service conducted and completed an additional SIR and several other studies that specifically addressed the significance of the listing of the seven species and the inadequacy of the snag and old growth standards. These new analyses support the Forest Service assertion that an SEIS in not necessary because the timber sales will not significantly affect the sensitive species and that after the sales, the old growth and snag standards will be satisfied. Friends of the Clearwater v. Dombeck, No. 99-35642 (9th Cir. Aug. 16, 2000) (11 pp.).

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red bar graphic NEPA, EIS, SUPPLEMENTAL INFORMATION REPORTS (SIRs):

The Ninth Circuit reversed and remanded a district court denial of an environmental group's motion for a preliminary injunction to prevent the U.S. Forest Service from preceding with certain timber sales in the Payette National Forest in Idaho. In separate litigation, a district court held as inadequate a Forest Service EIS. The group subsequently challenged the sales at issue on the grounds employed in the separate sale, but the district court denied the group's challenge. Nevertheless, the group and the Forest Service agreed to a settlement, which provided that the Forest Service would complete additional environmental documentation of the sales in the form of SIRs examining the need for further environmental review and documentation. The group reserved the right to re-sue, and after publication of the SIRs, the group challenged the timber sales alleging violations of NEPA and the National Forest Management Act. The district court denied the group's motion for a preliminary injunction of the sales. However, the district court' s denial of the preliminary injunction was based on the erroneous interpretation that the Forest Service can use SIRs, instead of a supplemental EIS or EA, to reevaluate an existing EIS or EA. SIRs can be used to determine if new information or changed circumstances require preparation of a supplemental EA or EIS. SIRs cannot serve as a substitute for a supplemental EA or EIS when an agency determines that new information is significant. In the previous litigation surrounding the separate sale, the Forest Service became aware of new information that should have been addressed in the original EAs and EISs for the sales at issue, not in a subsequent SIR. Further, NEPA requires that EAs and EISs be prepared early enough so that they can contribute to the decisionmaking process. Here, the Forest Service did not complete the SIRs at the earliest possible time. The SIRs were prepared in response to litigation, and the public was not given an opportunity to comment. Therefore, the SIRs do not remedy the fact that at the time the Forest Service originally approved the timber sales, it did not have all the necessary information that it was required to consider. In addition, the groups demonstrated the possibility of irreparable harm necessary for an injunction in that logging activities for the sales at issue had already begun. Idaho Sporting Congress, Inc. v. Alexander, No. 99-35847 (9th Cir. Aug. 17, 2000) (12 pp.).

red bar graphic WETLANDS, NEPA, FONSI:

The Ninth Circuit held that the U.S. Army Corps of Engineers did not violate NEPA when it issued a permit to a developer to fill wetlands for a mixed-use development project in Los Angeles County, California, and, therefore, vacated a district court's injunction prohibiting the developer from further construction activities. The Corps did not improperly limit the scope of its NEPA analysis by considering only environmental impacts resulting from the developer's application to fill 16.1 acres of wetlands. The Corps did not have jurisdiction over the upland development and, thus, was not required to evaluate the impacts attributable to the entire development, which encompassed 600 acres. Similarly, the Corps was not required to consider the environmental impacts attributable to each of the three development phases in a single NEPA analysis because the three phases have independent utility and, thus, are not connected actions. Moreover, the Corps' decision to issue a FONSI was not arbitrary and capricious. The Corps took a hard look at the environmental consequences of allowing the developer to construct a freshwater wetlands system to mitigate the loss of the filled wetlands and reasonably evaluated the effectiveness of the mitigation measures. Wetlands Action Network v. United States Army Corps of Engineers, Nos. 98-56242 et al. (9th Cir. Aug. 21, 2000) (17 pp.).

red bar graphic WETLANDS, MINERAL LEASES, MARSHLAND DAMAGE:

The Fifth Circuit affirmed a district court order requiring Louisiana oil companies that failed to maintain canal spoil banks to pay marsh land owners $240,000 for the damage to the owners' marsh caused by water flowing through gaps in the spoil banks. The companies own the mineral leases and canal servitudes across the owners' surface estate. The owners offered sufficient evidence to show that the improperly maintained spoil banks caused the marshland damage. Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 23 ELR 20979 (1993), the testimony of the owners' expert as to the dynamics of the damage to the marshes was admissible. The expert visited and studied the marshes, and his reliable and relevant testimony was based on his personal observation of the marsh in question and his undisputed expertise in marsh ecology and deterioration. Additionally, given the evidence before it of damages from natural causes and damages from the spoil banks, the district court reasonably approximated the companies' fault for the marsh damage. Further, despite the companies' assertion that they cannot be held legally responsible for the marsh damage the canal servitudes control, and the servitudes provide that the companies shall be liable for damages resulting from the maintenance of the canal. In addition, the award of damages was not excessive under state law. Restoration damages in excess of property value are available only where there is a reason personal to the owner for restoring the property's original condition or there is reason to believe that the owner will repair the property. Here, the marsh has personal significance to the owners, and they have attempted repair. Moreover, the district court properly limited the acreage on which damages were claimed and also properly credited to a degree the companies' explanation of damage by natural causes. St. Martin v. Mobil Exploration & Producing U.S. Inc., No. 99-30067 (5th Cir. Aug. 16, 2000) (21 pp.).

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red bar graphic CWA §402, NPDES, STORM WATER DISCHARGE PERMITTING:

A district court dismissed for lack of subject matter jurisdiction two CWA citizen suits that sought to compel EPA to issue CWA §402 NPDES storm water permits to the cities of St. Paul and Minneapolis, Minnesota. By 1993, both cities had submitted their NPDES storm water permit applications. CWA §505(a)(2) permits citizen suits only where EPA has failed to perform a mandatory act or duty. Under CWA §402, the authority to issue NPDES storm water permits originally rested with EPA, but a state can assume that authority with EPA approval. EPA authorized Minnesota to issue NPDES permits for all discharges in 1974. This authorization included storm water discharges for cities, such as the cities here, that have municipal separate storm sewer systems (MS4s), and states need not undergo a separate approval process for the authorization of MS4 permits. In line with this authority, both cities submitted their permit applications to the state environmental agency. Moreover, the state's failure to issue the NPDES permits did not create a mandatory duty for EPA to act under the constructive submission theory of subject matter jurisdiction. Although constructive submission has been used to justify jurisdiction of CWA §303(d)(2) TMDL cases, unlike CWA §303(d)(2), CWA §402 does not impose on EPA a mandatory duty to approve or disapprove a permit application. In addition, one city's motion to dismiss the claims against it is granted in part and denied in part. Because it cannot be determined from the record if the city qualifies for the zero discharge exemption to the CWA §301(a) discharge prohibition, the claims that the city is in violation of CWA §301(a) cannot be dismissed. However, the claim that the city did not fully comply with the permit application requirements is dismissed because CWA §505(a)(1) does not authorize citizen suits challenging permit applications. Mississippi River Revival, Inc. v. Administrator, Nos. 99 Civ. 1597 DDA/FLN, 99 Civ. 1596 DDA/FLN (D. Minn. Aug. 10, 2000) (Alsop, J.) (8 pp.).

red bar graphic  CERCLA, STATE-LAW NEGLIGENCE:

The Second Circuit reversed a district court order awarding landowners $1,083,585 following a jury verdict insofar as that amount was based on CERCLA claims against a copier refurbisher, but upheld the award insofar as it was based on negligence. The landowners alleged that the copier refurbisher violated CERCLA and various state tort laws because solvents used by the refurbisher contaminated the landowners' property. Because the landowners have not incurred any compensable expenses under CERCLA, the district court properly set the landowners' CERCLA recovery for past response costs at zero. However, the court improperly awarded the landowners future response costs because the proper remedy for future response costs is not a present lump-sum payment, but a declaratory judgment award dividing future response costs among responsible parties. In addition, because the landowners' negligence claim was not time-barred, the court properly entered judgment on the landowners' negligence claim, but it should have awarded the landowners prejudgment interest. Nevertheless, the district court properly dismissed the landowners' nuisance claim and their request to amend their complaint for gross negligence, and properly imposed sanctions against the refurbisher. Gussack Realty Co. v. Xerox Corp., Nos. 99-7759(L), -7889(XAP) (2d Cir. Aug. 22, 2000) (8 pp.).

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red bar graphic  MALICIOUS PROSECUTION, QUALIFIED IMMUNITY, STANDING:

The Second Circuit upheld a district court decision dismissing a pesticide manufacturer's malicious prosecution claim against an agent of the New York state environmental agency and dismissing its claim that the agency's use of administrative conservation appearance tickets (ACATs) was unconstitutional. After a fire at the manufacturer's plant, the agent issued the manufacturer an ACAT in an effort to reach an administrative settlement. When the parties failed to reach a settlement, the agent formally charged the manufacturer for violating state environmental law. A state court dismissed the criminal charges because there was no evidence of any substances being released into the environment. The manufacturer then filed the instant action in federal court. The agent is immune from the manufacturer's malicious prosecution claim because it was objectively reasonable for him to believe that the explosion and fire would have resulted in a release of hazardous substances into the environment. Whether a release actually occurred is not the test employed. Likewise, the agent enjoyed qualified immunity for using the ACAT; the form has been used for years and it has never been found to violate a clearly established constitutional right. Finally, the manufacturer lacked standing to challenge the constitutionality of the ACAT. Because the manufacturer was not coerced into paying any money to the state environmental agency, it cannot argue that it was deprived of property. Bonide Products, Inc. v. Cahill, No. 99-9107 (2d Cir. Aug. 22, 2000) (5 pp.).

red bar graphic  INSURANCE, "ACCIDENT," CLEANUP COSTS, ALLOCATION:

The Second Circuit affirmed a district court decision that determined the amount an insurer must indemnify a pesticide manufacturer for response costs incurred to remediate a former pesticide manufacturing plant. The manufacturer owned the plant from 1950 to 1968, over which time pesticides contaminated the soil. The manufacturer was required to conduct soil remediation and excavation, but after significant testing, it was determined that groundwater remediation was unnecessary. Under the insurance policies at issue, the insurer would indemnify the manufacturer for all damages caused by accident. A special jury determined that the only accidental injury to soil at the site occurred in 1956 and 1957, but that accidental injury to groundwater occurred in each year from 1958 to 1971. The district court properly held that under New York law, "accident" includes unintended damage that occurs over a long period of time. Similarly, there is no distinction under the policies between "accident" and "occurrence." Therefore, gradual injuries are not covered solely under the policies' personal injury provisions for occurrences. In addition, the manufacturer's soil removal costs did not result from injury to groundwater and, thus, did not fall under policies covering groundwater. The manufacturer's liability arose out of an EPA order to remove soil because of injury to soil. That injury was unintentional, and therefore covered by the policies for only two years. Moreover, the district court properly used allocation to determine the insurer's liability under the policies. Although the language of the policies is inconclusive, public policy and equitable consideration clearly indicate allocation. Further, because the manufacturer did not insure itself for gradual pollution despite the availability of commercial insurance for such pollution, liability for those uninsured years was properly allocated to the manufacturer. Additionally, the district court properly applied a new deductible that the manufacturer must pay for each triggered policy of the insurer because when multiple policies are triggered and liability is allocated to each, each policy's deductible is applicable. Olin Corp. v. Insurance Co. of North America, Nos. 98-7687(L), -7753(XAP) (2d Cir. Aug. 17, 2000) (21 pp.).

red bar graphic  BALD AND GOLDEN EAGLE PROTECTION ACT (BGEPA), RELIGIOUS FREEDOM RESTORATION ACT (RFRA), NATIVE AMERICANS:

The Eleventh Circuit upheld a district court decision that the BGEPA, which only allows members of federally recognized Native American tribes to use protected eagle parts for religious purposes, does not violate the RFRA. The BGEPA's membership requirement constitutes a substantial burden on a non-federally recognized tribal member's free exercise of religion. Nevertheless, the regulation furthers a compelling governmental interest, the preservation of Native American religions. Moreover, the regulation furthers that compelling interest using the least restrictive means. Without the requirement, the limited supply of eagle parts would be distributed to a wider population and federally recognized tribes would experience delays in receiving eagle parts. Consequently, the BGEPA's membership requirement does not violate the RFRA. Using the same compelling interest test, the court also held that the membership requirement does not violate the First Amendment's Free Exercise Clause. Gibson v. Babbitt, No. 99-13200 (11th Cir. Aug. 21, 2000) (3 pp.). 

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red bar graphic  NATIVE AMERICANS, BOUNDARY WATERS CANOE AREA WILDERNESS ACT (BOUNDARY WATER ACT):

The Eighth Circuit held that the Boundary Water Act's prohibition on the use of motorboats and motor vehicles in boundary water areas does not offend Native Americans' treaty rights to hunt and fish in a ceded territory encompassed within the boundary waters area of Basswood Lake, Minnesota. The Native Americans clearly possess the right to hunt and fish in the ceded territory under an 1854 treaty. Nevertheless, while the treaty protects their right to use modern hunting and fishing techniques, it does not similarly authorize the use of modern means of transportation to reach the most desirable hunting and fishing locations. Moreover, the Boundary Water Act's prohibition on motor vehicles does not preclude the Native Americans from exercising their hunting and fishing rights. Although the prohibition makes it somewhat less convenient for the Native Americans to reach the most remote regions of the boundary waters area, this inconvenience does not amount to an impermissible infringement on their treaty rights. Consequently, because the Act does not offend the Native Americans' treaty rights, their convictions for using motorboats and motor vehicles in the no motor zone in violation of the Act was upheld. United States v. Gotchnik, Nos. 99-4288 et al. (8th Cir. Aug. 21, 2000) (11 pp.).

red bar graphic  NATIONAL PARK SERVICE ORGANIC ACT (ORGANIC ACT), CANYONLANDS NATIONAL PARK ENABLING ACT (ENABLING ACT), MOTOR VEHICLE ACCESS:

The Tenth Circuit reversed a district court decision that a portion of the National Park Service's (NPS's) backcountry management plan for the Canyonlands National Park in Utah violated the Organic Act and the Enabling Act by allowing motor vehicle access on a 10-mile segment of road. The district court concluded that the Organic Act and the Enabling Act preclude the NPS from authorizing activities that permanently impair unique park resources. It then determined that such permanent impairment would occur if motor vehicle access was allowed on the 10-mile portion of road. However, the Organic Act's mandate against impairment is ambiguous. Neither the word unimpaired nor the phrase "unimpaired for the enjoyment of future generations" is defined in the Organic Act. Further, it is unclear from the statute itself what constitutes impairment, and how both the duration and severity of the impairment are to be evaluated or weighed against the other value of public use of the park. Moreover, the NPS's interpretation of what constitutes impairment is not currently entitled to deference because it exists only as a draft policy and, thus, does not qualify for the deference accorded either legislative or interpretive rules. Therefore, the case must be remanded to the district court to determine the proper standard for impairment. If, by the time of trial on remand, the NPS finalizes its draft interpretation of the Organic Act, that interpretation should receive the deference accorded legislative rules. Southern Utah Wilderness Alliance v. Dabney, No. 98-4202 (10th Cir. Aug. 15, 2000) (11 pp.).

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red bar graphic  PROPERTY TAXES, CONTAMINATION STIGMA, "CONTAMINATION VALUE":

The Minnesota Supreme Court held that a state statute allowing a reduction in market value due to the presence of contaminants on property does not incorporate the state-recognized stigma devaluative factor and, therefore, a manufacturer that owned contaminated property may be able to obtain a reduction in a county's property tax assessment of its property based on stigma. Contrary to the county's argument, the state statute does not incorporate stigma in its deductions from market value for contamination from the release or threatened release of contaminants. A stigma factor can attach to property whether or not contaminants are present. Further, the plain language of the statute states that it applies only to property that is actually contaminated. Also, because the statute's definition of the term "contamination value" is defined as the reduction in market value resulting from the presence of contaminants, it does not include a stigma factor because stigma may attach to property that is not contaminated, but stigma can have a substantial impact on determining the value of uncontaminated property. Moreover, the legislative history of the statute supports the conclusion that it does not include stigma. In addition, a finding that the statute does incorporate stigma is inconsistent with the state property tax scheme that provides that, with limited exceptions, all property is to be valued at market value. Dealers Manufacturing Co. v. County of Anoka, No. C9-99-1869 (Minn. Aug. 10, 2000) (10 pp.).

red bar graphic  WRIT OF CORAM NOBIS, CWA, JURY MISCONDUCT:

The Eleventh Circuit reversed a district court grant of a writ of coram nobis to two individuals who alleged jury misconduct after being convicted of CWA criminal violations. Under United States v. Mayer, 235 U.S. 55 (1914), a court's jurisdiction over coram nobis petitions is limited to the review of errors of the most fundamental character. Such errors do not include prejudicial misconduct in the course of trial, the misbehavior or partiality of jurors, and newly discovered evidence. Thus, the grant of the writ is reversed and the case remanded for entry of judgment for the government. United States v. Mills, No. 99-14934 (11th Cir. Aug. 8, 2000) (5 pp.).

red bar graphic  WATER RIGHTS, OVERDRAFT CONDITIONS, EQUITABLE APPORTIONMENT:

The California Supreme Court held that a trial court may not resolve water right priorities in an overdrafted basin with a "physical solution" that relies on the equitable apportionment doctrine but does not consider the affected owners' legal rights in the basin. Landowners who had overlying water rights in the Mojave River Basin in California appealed the decision claiming that the physical solution amounted to a taking because it did not recognize their preexisting and paramount legal water rights. The appellate court properly reversed the trial court's ruling with respect to these landowners. In ordering a physical solution, a court may neither change priorities among the water rights holders nor eliminate vested rights in applying the solution without first considering them in relation to the reasonable use doctrine. Here, the landowners retained their overlying rights by pumping and no claim of prescription had been asserted to reduce those retained overlying rights. Moreover, in the event of water supply shortage, overlying users have priority over appropriative users. Thus, by not attempting to determine the priority of rights and merely allocating pumping rights based on prior production, the trial court erroneously elevated the rights of appropriators to the same status as the rights of the overlying owners. The appellate court, however, erred in finding that the trial court abused its discretion when it determined that a water provider who desired to stipulate to the physical solution was fairly apportioned its share of water. City of Barstow v. Mojave Water Agency, No. S071728 (Cal. Aug. 21, 2000) (36 pp.).

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

THE FEDERAL AGENCIES
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Note: Citations below are to the Federal Register.

red bar graphic  AIR:

  • EPA promulgated a federal plan to implement emission guidelines for hospital/medical/infectious waste incinerators constructed on or before June 20, 1996, located in states and Indian country without effective state or tribal plans. 65 FR 49867 (8/15/00).
  • EPA announced the availability of a draft guidance on the design of flexible air permits. 65 FR 49803 (8/15/00).
  • EPA announced the availability of its draft guidance on best available control technology for nitrogen oxide control on combined cycle turbines. 65 FR 50202 (8/17/00).
  • EPA announced the availability of a final document entitled Air Quality Criteria for Carbon Monoxide. 65 FR 50202 (8/17/00).
  • EPA announced the availability of a draft national action plan to promote further voluntary reductions for the use and exposure to alkyl-lead compounds. 65 FR 51823 (8/25/00).
  • EPA announced the availability of a draft national action plan to promote further voluntary reductions of release and exposure to octachlorostyrene. 65 FR 51825 (8/25/00).
  • EPA promulgated full approval of the CAA operating permit program submitted by Colorado. 65 FR 49919 (8/16/00).
  • EPA promulgated a federal implementation plan to control particulate matter emissions from an elemental phosphorus facility owned by Astaris-Idaho LLC in southeastern Idaho. 65 FR 51411 (8/23/00).

red bar graphic  DRINKING WATER:

  • EPA approved revisions to South Dakota's public water system supervision primacy program. 65 FR 49984 (8/16/00).

red bar graphic  HAZARDOUS AND SOLID WASTE:

  • EPA proposed amendments to the regulations governing corrective action management units (CAMUs) that concern the types of wastes that may be managed in a CAMU, the design standards that apply to CAMUs, the treatment requirement for wastes placed in CAMUs, information submission requirements for CAMU applications, responses to releases from CAMUs, and public participation requirements for CAMU decisions. 65 FR 51079 (8/22/00).
  • EPA entered into a proposed administrative settlement under CERCLA §122(h) in connection with the Brownsville Drums Superfund site. 65 FR 50988 (8/22/00).
  • EPA proposed to enter into a settlement under CERCLA §122(h)(1) in connection with the Geiger (C&M) Superfund site in Rantowles, S.C. 65 FR 51319 (8/23/00).
  • EPA proposed to enter into a settlement under CERCLA §122(h)(1) in connection with the ILCO Superfund site in Leeds, Ala. 65 FR 51319 (8/23/00).
  • EPA proposed to enter into a prospective purchaser agreement under CERCLA concerning property owned by Ware Shoals Power & Water, Inc., in Greenwood County, S.C. 65 FR 51319 (8/23/00).
  • EPA proposed to enter into two cost recovery settlements under CERCLA §§122(g) and 122(h) in connection with the John P. Saad Superfund site in Nashville, Tenn. 65 FR 51616 (8/24/00).
  • EPA proposed to enter into a de minimis settlement under CERCLA §122(g) in connection with the Lakeland Disposal Service, Inc., Superfund site in Claypool, Ind. 65 FR 51616 (8/24/00).
  • EPA entered into a proposed administrative settlement under CERCLA §122(h) in connection with the St. Louis River Superfund site in Duluth, Minn. 65 FR 51830 (8/25/00).

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red bar graphic  NATURAL RESOURCES:

  • NOAA issued an advance notice of proposed rulemaking regarding whether changes to existing national marine sanctuary regulations or some form of policy guidance is necessary to clarify NOAA's decisionmaking process regarding the installation and maintenance of commercial submarine cables within national marine sanctuaries. 65 FR 51264 (8/23/00).
  • FWS and the Forest Service promulgated emergency closures and adjustments to protect chinook salmon escapement in the Kuskokwin River drainage, chinook and summer chum salmon escapement in the Yukon River drainage, and sockeye salmon escapement in Redoubt Lake. 65 FR 51542 (8/24/00).
  • FWS and the Forest Service proposed to establish regulations for hunting and trapping seasons, harvest limits, methods, and means related to the taking of wildlife for subsistence uses during the 2001-2002 regulatory year. 65 FR 51647 (8/24/00).

red bar graphic  PESTICIDES:

  • EPA announced the availability of a guidance document entitled Protocol for Testing the Efficacy of Disinfectants Used to Inactivate Hepatitis B Virus and Corresponding Label Claims. 65 FR 51828 (8/25/00).

red bar graphic  PROJECT XL:

  • EPA announced the availability of the Project XL proposed final project agreement for Autoliv Automobile Safety Products. 65 FR 49571 (8/14/00).
  • EPA announced the availability of a Project XL proposed final project agreement for the Kodak Company. 65 FR 49571 (8/14/00).
  • EPA announced the availability of a proposed regulator reinvention pilot project agreement for Clermont County, Ohio, that focuses on the East Fork of the Little Miami River watershed. 65 FR 49983 (8/16/00).
  • EPA proposed a site-specific rule to implement a project under its Project XL program that would provide regulatory flexibility under RCRA for the U.S. Filter Recovery Services facility in Roseville, Minn. 65 FR 50283 (8/17/00).
  • EPA announced the availability of a draft Project XL final project agreement for the Labs21 project. 65 FR 50200 (8/17/00).
  • EPA announced the availability of a Project XL final project agreement for PPG Industries, Inc. 65 FR 50987 (8/22/00).
  • EPA announced the availability of a draft Project XL final project agreement for the Chicago Regional Air Quality and Economic Development Project. 65 FR 51827 (8/25/00).

red bar graphic  SMCRA PROGRAM APPROVALS:

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red bar graphic  WATER QUALITY:

  • EPA promulgated technology-based effluent limitations guidelines, new source performance standards, and pretreatment standards for the discharge of pollutants into U.S. waters and into publicly owned treatment works by existing and new facilities that perform transportation equipment cleaning operations. 65 FR 49665 (8/14/00).
  • EPA and the U.S. Army Corps of Engineers proposed to amend the CWA §404 regulations defining the term "discharge of dredged material." 65 FR 50107 (8/16/00).
  • EPA revised the aquatic life criteria for cadmium and announced the availability of its aquatic life criteria document for cadmium. 65 FR 50201 (8/17/00).
  • EPA approved Pennsylvania's submission of criteria, methodologies, policies, and procedures for the Great Lakes System under CWA §118. 65 FR 49573 (8/14/00).
  • EPA announced that it approved a modification to Wisconsin's pollutant discharge elimination system permitting program to include the administration and enforcement of a state sewage sludge management program. 65 FR 50528 (8/18/00).
  • EPA received a petition from Virginia requesting a determination that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the navigable waters of Smith Mountain Lake in Bedford, Franklin, and Pittsylvania Counties. 65 FR 50988 (8/22/00).

red bar graphic  DOJ NOTICES OF SETTLEMENTS:

  • U.S. v. E.I. du Pont de Nemours, No. 97-191 (E.D. Ky. Aug. 1, 2000) (a settling defendant that violated the CAA, CERCLA, and EPCRA at its sulfuric acid manufacturing plant in Wurtland, Ky., must pay $850,000 in civil penalties and must perform a supplemental environmental project valued at $650,000 requiring it to upgrade the emergency notification systems of the 10 counties surrounding its Wurtland facility), 65 FR 49837 (8/15/00);
  • U.S. v. Yaworski, Inc., No. 3:99cv626 (PCD) (D. Conn. Aug. 2, 2000) (a settling CERCLA defendant must pay $1,425,000 in EPA response costs incurred at the Yaworski Lagoon Superfund site in Canterbury, Conn.), 65 FR 49837 (8/15/00);
  • U.S. v. RAM Industries, Inc., No. 00-3826 (E.D. Pa. July 28, 2000) (a settling CERCLA defendant must pay $13,500 in past EPA response costs incurred at the Eighth Street Drum site in Chester, Pa.), 65 FR 50005 (8/16/00);
  • U.S. v. Gateway Forest Products, Inc., No. A00-225 CV (D. Alaska Aug. 4, 2000) (two settling CERCLA defendants must implement the EPA-selected remedial actions for the marine and uplands operable units of the Ketchikan Pulp Company Superfund site in Ketchikan, Alaska, at an estimated cost of $6.1 million, must pay $371,057 in past U.S. response costs incurred at the site, and must pay for future U.S. response costs associated with overseeing implementation of the remedial actions), 65 FR 50217 (8/17/00);
  • U.S. v. JMB/Urban Development Co., No. C2-92-976 (S.D. Ohio Aug. 9, 2000) (two settling CWA defendants that allegedly engaged in unauthorized wetland filling activities in Columbus, Ohio, must create and maintain 37.3 acres of jurisdictional wetlands and must integrate the site into a 75-acre environmental and education area), 65 FR 50217 (8/17/00);
  • U.S. v. Atlantic Richfield Co., No. 89-39-BU-PGH (D. Mont. Aug. 10, 2000) (a proposed consent decree was entered into under CERCLA in connection with the Rocker Operable Unit), 65 FR 51022 (8/22/00);
  • U.S. v. HS Resources, Inc., No. CV00-1850 (W.D. La. Aug. 9, 2000) (two settling CWA defendants that discharged pollutants into U.S. waters at 10 oil well sites in Louisiana must pay $700,000 in civil penalties, must spend an additional $500,000 to acquire one or more wetland tracts in Louisiana and convey the property to The Nature Conservancy, must apply for an after-the-fact permit for the unauthorized discharges, and must comply with the terms of that permit), 65 FR 51022 (8/22/00);
  • U.S. v. Jayhawk Pipeline, LLC, No. 99-20009-GTV (D. Kan. Aug. 8, 2000) (a settling CWA defendant that discharged oil from its inland oil gathering lands to navigable U.S. waters or adjoining shorelines within Kansas must pay a $352,000 civil penalty, must purge and permanently remove certain portions of its gathering line system from service, must install a cathodic protection system on all gathering lines that remain in service, must perform corrective measures, must hydrostatically test certain gathering lines, and must perform other actions), 65 FR 51022 (8/22/00);
  • U.S. v. Malik, No. 1:00CV00084FRB (E.D. Mo. July 28, 2000) (a settling CERCLA defendant must pay $5,000 in past U.S. response costs incurred in connection with the MRM Industries, Inc., Superfund site in Sikeston, Mo.), 65 FR 51023 (8/22/00);
  • U.S. v. Zacharias Bros., No. 3:00CV521 (E.D. Va. Aug. 8, 2000) (five settling CERCLA defendants must pay, in aggregate, $160,377.72 in past U.S. response costs incurred at the C&R Battery Company, Inc., Superfund site in Chesterfield, Va.), 65 FR 51023 (8/22/00).

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

IN THE STATES

red bar graphic ALABAMA

Dept. of Envtl. Management

Public Notices–Permit Applications 

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red bar graphic  ALASKA

Dept. of Envtl. Conservation

Water Quality-Performance Partnership Agreement

Cruise Ship Regulation

Proposed Regulations-Air

red bar graphic ARIZONA

Dept. of Envtl. Quality

Water Quality-CWA 305(b) Report

Water Quality-Proposed Regulations

  • Proposal will implement the Water Quality Assurance Revolving Fund reform legislation of 1997, including revisions to remedy selection provisions. The rules include standards governing the conduct of preliminary investigations, site "scoring" for placement on the Registry, public information requirements, and the conduct of early response actions. Written comments due Oct. 18; public hearings Sept. 20 (Tucson) and 21 (Phoenix). See http://www.adeq.state.az.us/lead/oac/stat.html and www.sosaz.com/arr for more information. 

Proposed Regulations-Operator Certification

  • Public hearings scheduled for Sept. 11, 14, 15, 19, 21, and 27; written comments due Oct. 4. 

Reopened Proposed Regulations-UST Release Reporting and Corrective Action

Air Quality-Proposed Gas Station General Permit

Superfund Program-Proposed Registry Inclusions, Prospective Purchaser Agreements

red bar graphic ARKANSAS

Dept. of Envtl. Quality

Draft Remedial Action Decisions

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red bar graphic CALIFORNIA

Air Resources Board

Diesel Risk Reduction Plan and Permitting Guidance-Stationary Diesel Engines

Proposed Regulations-Conflict of Interest Code

  • 45 day Notice of Public Hearing to Consider the Adoption of Amendments to Regulations Regarding the Conflict of Interest Code of the Air Resources Board. This document and the associated "formal" regulatory materials can be accessed at http://www.arb.ca.gov/regact/conflict/conflict.htm

Final "Smog Check" Report

Carpool Lane Use-Qualifying Vehicles

Zero Emission Vehicle Biennial Review

Dept. of Toxic Substances Control

Proposed Regulations-Administrative Penalty Assessment

  • Proposed Article 3, Chapter 22, Div. 4.5 of Title 22, CCR, would make specific the statutory requirement in Health and Safety Code Section 25187(a)(4) by assessing administrative penalties based on criteria such as the nature and gravity of the violation, the violator's history and ability to pay the penalty, and the deterrent effect of the penalty on both the violator and the regulated community as a whole. Public workshops Sept. 14 and 15. See http://www.dtsc.ca.gov/pdf2html.html

Draft Permit

  • For hazardous waste storage and treatment (by incineration, open burning and/or open detonation) at the U.S. Army Sierra Depot. Public hearings Sept. 12 and 13. Comments due Oct. 11. See http://www.dtsc.ca.gov/ (click on "What's New"). 

Integrated Waste Management Board

Final Regulations-Farm and Ranch Cleanup

  • New regulations, effective July 29, provide for a grant process that allows qualifying parties to obtain funding for cleanup of solid waste illegally disposed of on farm and ranch properties. Details at http://www.ciwmb.ca.gov/Rulemaking/RgUpdate.htm

South Coast Air Quality Management District

Proposed Regulations-BACT/RECLAIM

  • Proposed amendments, to be considered at a Sept. 15 public hearing, will separate BACT for RECLAIM and non-RECLAIM sources into LAER for federal major sources, and BACT for minor sources pursuant to state law. Currently, LAER is required for emission increases from all sources. See http://www.aqmd.gov/hb/000072a.html

Proposed Regulations-Fuel Sulfur Content

  • Proposed amendments will establish an immediate sulfur content for ultra low sulfur diesel fuel and, after Jan. 1, 2004, will prohibit the purchase, sale or burning of diesel fuel that exceeds the sulfur standard. Subject of Sept. 15 public hearing. See http://www.aqmd.gov/hb/00072a.html

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red bar graphic COLORADO

Water Quality Control Commission

Proposed Regulations

red bar graphic  CONNECTICUT

Dept. of Envtl. Protection

Request for Proposals

red bar graphic FLORIDA

Dept. of Envtl. Protection

Proposed Regulations-Contaminant Cleanup Target Levels, Brownfield Cleanup Criteria

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-NPDES Program; Stormwater

  • Proposed regulations would allow completion of NPDES delegation by incorporating standards governing stormwater and federal facilities. The proposed rule includes fees for implementing the NPDES stormwater program. 

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.

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red bar graphic GEORGIA

Dept. of Natural Resources

Proposed Regulations-Hazardous Waste

  • Proposed revisions will incorporate changes in U.S. EPA regulations. Public hearing held Aug. 25. Will be taken up at Oct. 25 meeting of Board of Natural Resources. See http://www.ganet.org/dnr/environ

Air Permit Applications

NPDES Permit Applications

red bar graphic IDAHO

Dept. of Envtl. Quality

Proposed Rules-Air Quality

  • Proposed rule will replace process weight rule applicable to grain air emissions with a grain loading standard. Comments due Sept. 8; public hearing Sept. 7. For details, see http://www2.state.id.us/deq/rules/0-9903b.htm

  • Negotiated rulemaking will address several issues, including transitioning from permits to construct to permits to operate and clarification of permit requirements prior to construction and operation. Initial meeting Aug. 30. See http://www2.state.id.us/deq/rules/58-0101-0002.htm

Outstanding Resource Waters-Petitions

Risk Based Corrective Action

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red bar graphic ILLINOIS

Pollution Control Board

Inquiry Hearings-Peak Load Electric Generating Facilities

Envtl. Protection Agency

Permit Applications

Strategic Planning Process

Clean Lakes Program Grants Available

  • Approximately $750,000 available for distribution. Amy Walkenbach at IEPA is the contact ((217)782-3362). 

red bar graphic INDIANA

Dept. of Envtl. Management

Proposed Regulations-Air

Final Regulations-Air

Proposed Regulations-Water 

Proposed Regulations-Waste

  • Oct. 17 public hearing regarding proposed amendments to 329 IAC 3.1, 329 IAC 12, and 329 IAC 13 regarding rules for secondary containment for used oil containers and underground tanks. The proposal also amends 329 IAC 3.1 to require two paper copies and an electronic copy of groundwater laboratory analytical data and field parameters and revises 329 IAC 127-7-6 to allow flexibility in the timing of training courses for solid waste facility operators. See http://www.state.in.us/legislative/register/August-1-2000.html

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red bar graphic MARYLAND

Dept. of the Environment

Public Meetings/Hearings

Water Quality Standard-Triennial Review

red bar graphic MASSACHUSETTS

Dept. of Envtl. Protection

Final Regulations-Waterways

Proposed Regulations-Air

  • Proposed design and performance standards for new boilers having an energy input capacity of between 10 and 40 million Btu per hour. Public hearings Sept. 7 and 8; comments due Sept. 18. See http://www.state.ma.us/dep/erp/notice.htm

  • Draft 310 CMR 7.29 standards governing emissions from power plants available for informal public review; no hearing currently scheduled. See http://www.state.ma.us/dep/new.htm

Enforcement Actions

red bar graphic  MICHIGAN

Dept. of Envtl. Quality

Brownfield Law Workshops

  • Workshops scheduled for Sept. 12, 14, 19, and 21 to discuss recent statutory changes to brownfield legislation (2000 Public Acts 143, 144, and 145, enacted June 6). The statutory revisions expand the eligible activities for property tax reimbursement to include infrastructure improvements, structure demolition, lead or asbestos abatement, site preparation, and relocation of public buildings and operations. The legislation also expands eligible property for tax reimbursement and Single Business Tax credit to include blighted or functionally obsolete property. See http://www.deq.state.mi.us/pr/000809B.htm

Management Team Public Meeting

Permit Applications-Air

 Air Quality Division Newsletter

Surface Water Quality Division Bulletin

Surface Water Quality Division-Draft Regulations

Clean Michigan Initiative Grant Funding

red bar graphic MINNESOTA

Pollution Control Agency

Permit Applications, Other Notices

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red bar graphic  MISSOURI

Dept. of Natural Resources

Final Regulations-Air

Watershed Protection Conference

Water Pollution Control-Permit Applications

red bar graphic NEW HAMPSHIRE

Proposed Regulations-Wetlands

red bar graphic NEW JERSEY

Dept. of Envtl. Protection

Proposed Regulations-Freshwater Wetlands

Draft Watershed Management Rules

Current DEP Bulletin (Permit Applications; Proposed Regulations)

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red bar graphic NEW YORK

Dept. of Envtl. Conservation

Comparative Risk Project

Proposed Regulations-Air Emissions 

Environmental Notice Bulletin (Permit Applications)

Permit Applications

red bar graphic  NORTH CAROLINA

Dept. of Envt. and Natural Resources

Division of Air Quality-Proposed Regulations

  • Proposed nitrogen oxide (NOx) emission control plan and rules will be submitted to the Environmental Management Commission on Sept. 1 (written comments due that date). See http://daq.state.nc.us/News/noxresponse_00700.html. Will be taken up at Oct. 12 meeting of the Environmental Management Commission. Public meeting Aug. 31 in Raleigh. 
  • Hearing Aug. 16 regarding a number of proposed revisions to air regulations, including revisions to Title V permitting rules, clarification that the visible emissions rule does not apply to engine maintenance facilities where controls are infeasible, to revoke permit exemptions for noncompliant sources, and to change schedules for submitting permit applications. Rule revisions would also change the definition of a Title V facility for fee purposes, extend Title V nonattainment area fees to certain Title V facilities outside nonattainment areas, and adopt a new general standard for the control of odors. Written comments are due Aug. 31. See http://daq.state.nc.us/Rules/Hearing

Air Quality-NOx Emissions

  • Aug. 7 decision by DENR to not appeal D.C. Circuit Court of Appeals ruling requiring North Carolina and 21 other states to adopt rules for reducing NOx emissions from utilities and other sources. Press release available at http://www.enr.state.nc.us/newsrels/mather4.htm

Division of Air Quality Penalty Assessments

DENR Enforcement Data

Water Quality-Basinwide Assessment Reports

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red bar graphic OHIO

Envtl. Protection Agency

Proposed Regulations-Water Quality

OPEA Actions, Notices by County

Pending Air Permits

red bar graphic OKLAHOMA

Dept. of Envtl. Quality

Draft Source Water Assessment and Protection Program Document

red bar graphic OREGON

Dept. of Envtl. Quality

Water Quality Permit Applications

Proposed Regulations

Public Notices-Cleanup Remedies

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red bar graphic PENNSYLVANIA

Dept. of Envtl. Protection

Proposed Regulations-Storage Tank Spill Prevention

Final General NPDES Permit-CAFO Operations

Final Regulations-Air

Proposed General NPDES Permit Revision

NPDES Permit Applications

red bar graphic SOUTH CAROLINA

Dept. of Health and Envtl. Control

Permit Application Notices

red bar graphic  TENNESSEE

Dept. of Environment and Conservation

Grant Availability-Recycling Marketing

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red bar graphic  TEXAS

Natural Resource Conservation Commission

Final Regulations-Solid Waste

Final Regulations-Air

Proposed Regulations

  • Water/wastewater operator certification rules are being reproposed to comport with the SDWA requirements. Public hearing Aug. 24. See http://www.tnrcc.state.tx.us/oprd/rules/propadop.html
  • Preproposal draft of revisions to Surface Water Quality Standards available at http://ww.tnrcc.state.tx.us/oprd/index.html
  • Proposed quadrennial review of Chapter 114 (Control of Air Pollution from Motor Vehicles). See http://www.tnrcc.state.tx.us/oprd/whatsnew.html
  • Proposed regulations would create a nitrogen oxide trading program in Houston-Galveston nonattainment area, require an average of 90% reduction in NOx emissions from new controls in the nonattainment area, impose new vehicle emissions testing requirements, implement a seasonal ban on early-morning use of heavy-duty construction equipment, require the sale of low-sulfur gasoline throughout Central and Eastern Texas (including the Dallas-Ft. Worth and Beaumont areas, starting in 2002), ban the use of small gasoline-powered lawn care equipment between 6 a.m. and noon in summer months, implement requirements for new commercial and residential air conditioning equipment, require early retirement and replacement of off-highway diesel equipment, require emission reductions at area airports, reduce speed limits to 55 (starting in 2002), encourage voluntary measures such as telecommuting and stoplight synchronization, restrict truck engine idling, and reduce the duration of emission reduction credits from ten to five years. Public hearings scheduled for various locations Sept. 18-25. Written comments due Sept. 25. See http://www.tnrcc.state.tx.us

Submitted Report-Air-Protection of Visibility

Permit Hearings

Sunset Advisory Commission

Strategic Plan

red bar graphic  UTAH

Dept. of Envtl. Quality

Permit Applications

red bar graphic VERMONT

Dept. of Envtl. Conservation

Permit Applications

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red bar graphic VIRGINIA

Dept. of Envtl. Quality

Public Information Forum 

Landfill Closure Proposal

  • Comments accepted through Oct. 13 on reports that propose that certain landfills be closed by 2005, other identified facilities by 2010, and five more by 2020, on the basis of risk of exposure to contaminants. The DEQ has also compiled new data regarding the receipt of out-of-state generated municipal solid waste in 1999. For details, see http://www.deq.state.va.us/news/releases/964019031.html

Permit Application

  • Air permit application submitted by Commonwealth Chesapeake Co. (TECO Power Services), New Church, for installation of turbines and increase of allowed carbon monoxide emissions from existing turbines. Public hearing Sept. 11. See http://www.deq.state.va.us/notice/pn/965653085.html

Proposed Consent Orders

RCRA Program Authorization

Public Meeting Notices

Litter Prevention, Recycling Grants

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red bar graphic  WASHINGTON

Dept. of Ecology

Adopted Regulations

Proposed Regulations

red bar graphic WEST VIRGINIA

Dept. of Envtl. Protection

Public Notice Bulletin (Permit Applications, Proposed Regulations)

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red bar graphic WISCONSIN

Dept. of Natural Resources

Public Hearing and Meeting Schedule