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Weekly Update Volume 30, Issue 5

02/14/2000

LITIGATION
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Note: The cases listed are available from the ELR Document Service.

red bar graphic CENTRAL VALLEY PROJECT, SAN LUIS ACT, WATER DRAINAGE:

The Ninth Circuit affirmed a district court decision requiring the DOI to furnish water drainage service for agricultural areas receiving irrigation water through the Central Valley Project, but reversed the decision insofar as it dictated the specific action to be taken by the government. Although the San Luis Act authorizes but does not require construction of an irrigation unit, Congress was clear that once the DOI decided to construct the unit, the DOI was required to construct necessary drainage as part of the unit. Further, the district court correctly found that appropriation riders passed by Congress that limited funds for the construction of the drainage unit do not implicitly repeal the DOI’s duty to provide drainage under the San Luis Act. The appropriations do not provide an affirmative showing of an intention to repeal the drainage requirements nor do they conflict with the San Luis Act. Moreover, the district court was correct in concluding that the DOI’s failure to provide drainage violated the San Luis Act. The district court, however, improperly eliminated agency discretion by compelling the manner in which the DOI should satisfy the drainage requirement. Firebaugh Canal Co. v. United States, Nos. 95-15300, -16641 (9th Cir. Feb. 4, 2000) (23 pp.).

red bar graphic PRIMATES, MINIMUM REQUIREMENTS:

The D.C. Circuit held that the U.S. Department of Agriculture’s (USDA’s) regulations on the treatment of primates comply with the Improved Standards for Laboratory Animals Act and the APA. Contrary to the district court’s finding, the regulations delineate minimum requirements for a physical environment adequate to promote the physical well-being of primates. The regulations include mandatory engineering standards, such as conditions on cage size and the use of restraints, that meet the "minimum requirements" level decreed in the statute. Moreover, the USDA had broad deference in choosing the level of generality at which to articulate the regulations and it was entirely reasonable for it to set a relatively flexible standard. Additionally, the animal defense group’s failure to raise an "informational injury" theory before the first panel to hear the case forecloses its ability to raise it now. Animal Legal Defense Fund, Inc. v. Glickman, No. 97-5031 (D.C. Cir. Feb. 1, 2000) (7 pp.).

red bar graphic SPECIAL USE PERMIT, NATIONAL FOREST, SNOWPLOWING:

The Tenth Circuit affirmed a district court decision approving a special use permit that allows landowners with property surrounded by the Gunnison National Forest in Gunnison County, Colorado, to snowplow two miles of a U.S. Forest Service road so they can reach their residence by automobile in the winter. The Forest Service did not act arbitrarily or capriciously or contrary to law in granting the permit. The Forest Service properly took into account a county resolution that purported to limit the use of the property to non-year-round occupation. While the term "year-round" usually means "used in wintertime," it is unclear how much wintertime use is prohibited by the resolution and it may reasonably be read to allow for some use of the property during the winter. Additionally, the Forest Service had considerable discretion in determining which "similarly situated" properties it should consider in deciding whether to issue special use permits. Further, the Forest Service considered comments submitted by citizens regarding the adverse impacts of snowplowing on various winter activities and the environment and found that they could be controlled by mitigating measures. Finally, the Forest Service properly concluded that it did not need to prepare an EA under NEPA before issuing the special use permit. High Country Citizens’ Alliance v. United States Forest Service, No. 97-1373 (10th Cir. Feb. 7, 2000) (10 pp.).

red bar graphic OIL AND GAS LEASE, SEISMIC OPERATIONS:

The Fifth Circuit reversed and remanded a district court decision that an oil company that purchased an oil and gas lease did not have the right to conduct seismic exploration on the leased land or to sell or disseminate the seismic data. The lease gave the company the exclusive right to explore oil and gas, and oil and gas treatises as well as commentators on Louisiana mineral law have found that seismic operations are generally accepted as included in the methods of "exploration" even if not specifically referred to in the mineral lease. Additionally, a federal court applying Louisiana law held that a mineral lessee with the exclusive right to explore for minerals may conduct seismic operations on the land even over the owner’s objections as long as the landowner’s rights are reasonably regarded and his use of the surface is not unduly disrupted. Thus, the district court improperly held that the term "exploration" in the lease did not grant the oil company the right to conduct seismic activity on the land. Moreover, the oil company is entitled to ownership of the seismic data it develops. Musser Davis Land Co. v. Union Pacific Resources, No. 98-30673 (5th Cir. Jan. 21, 2000) (8 pp.).

red bar graphic COMMERCE CLAUSE, SOLID WASTE:

A district court granted solid waste handlers’ motion for summary judgment and held that Virginia statutes limiting the importation of out-of-state solid waste unconstitutionally violates the Commerce Clause. Virginia passed statutes limiting the amount of waste that could be contributed to any in-state landfill and restricting the use of barges for transportation of solid waste on Virginia’s waterways. The statutes were subjected to strict scrutiny and found unconstitutional because Virginia was unable to demonstrate that no adequate, nondiscriminatory alternatives existed that would protect local interests just as well as the disputed statutes. Additionally, the commonwealth was unable to show that the statutes were demonstrably justified by a valid factor unrelated to economic protectionism. Waste Management Holdings v. Gilmore, No. 3:99CV425 (Spencer, J.) (E.D. Va. Feb. 2, 2000) (18 pp.) (Plaintiffs’ counsel included Evan M. Tager of Mayer, Brown & Platt in Washington DC).

red bar graphic ESA, FISHERY MANAGEMENT PLANS (FMPs), BIOLOGICAL OPINIONS:

A district court held that the National Marine Fisheries Service (NMFS) failed to prepare a comprehensive, programmatic biological opinion equal in scope to its North Pacific FMPs for groundfish fisheries in the Bering Sea and Gulf of Alaska in violation of the ESA. Because the FMPs constituted on-going agency action under the ESA, the NFMS was required to prepare a biological opinion that was equal in scope to the FMPs. The biological opinion, however, was improperly limited in scope to the authorization of the 1999 fishery. Moreover, the biological opinion was heavy on general background information and failed to provide focused and meaningful discussion and analysis of how the large fisheries and the complex management measures that regulate them affect the endangered Steller sea lion. Further, the NFMS’ decision to reinitiate consultations did not withdraw the biological opinion and remove the court’s authority over the case. The NFMS, therefore, is in continuing violation of the ESA until a biological opinion adequately addressing the full impact of the FMPs is completed. Greenpeace v. National Marine Fisheries Service, No. C98-492Z (W.D. Wash. Jan. 25, 2000) (Zilly, J.) (16 pp.).

red bar graphic INSURANCE, EVIDENCE OF A CONTRACT:

A district court granted an insurer’s motion for summary judgment and found that it had no duty to insure or indemnify a construction company being sued as a third-party defendant for disposing of toxic and/or hazardous waste. The construction company, which failed to respond to the insurer’s motion for summary judgment, did not provide any evidence that a contract existed between it and the insurer. However, the insurer provided clear, convincing, unrefuted evidence that no policy agreement existed between it and the construction company during the relevant time period. TIG Insurance Co. v. MECO Constructors, Inc., No. CIV. A. 97-3162 (Reed, J.) (E.D. Pa. Jan. 24, 2000) (4 pp.).

red bar graphic ZONING, PERMITTED LAND USE:

An Oregon appellate court upheld the decision of a land use board that remanded a county’s decision to allow a city-run wastewater treatment plant to operate on land zoned for exclusive farm use (EFU). The county approved the use as one that is permitted outright on land zoned for EFU. Contrary to the county’s finding, the proposed use required a permit under state statutes. Further, whether or not the proposed use was permissible under state statutes could not be decided without factual determinations made at hearing. The board, therefore, properly remanded the decision. Friends of the Creek v. Jackson County, No. 98-158 (Or. Ct. App. Jan. 26, 2000) (3 pp.).

red bar graphic LAND USE, COMMUNITY DEVELOPMENT CODE (CDC):

An Oregon appellate court held that a land use board should have affirmed a county’s preliminary approval of a residential subdivision in an area designated as a "wildlife habitat" that contained wetlands. The board rejected the county’s interpretation of the CDC and concluded that the wetlands on the proposed subdivision were riparian zones subject to the CDC’s restrictions on development. The CDC, however, only applies to wetlands identified in a community plan and adjacent riparian zones. Here, the wetland areas have not been identified in the county’s comprehensive plan documents, therefore, the CDC does not restrict development. Plotkin v. Washington County, No. A107171 (Or. Ct. App. Jan. 26, 2000) (6 pp.).

red bar graphic RCRA, POST-CLOSURE CARE:

The EPA Environmental Appeals Board (EAB) upheld all but one of EPA’s permit provisions requiring a manufacturing company to undertake corrective action in connection with post-closure work being performed for two hazardous waste impoundments associated with the company’s retired electroplating operation. Given the facility’s proximity to a river and a groundwater plume, EPA was justified in requiring notice whenever hazardous constituents migrate beyond the facility in greater than background concentrations. Further, the off-site areas of concern (AOCs) were not subject to the NPDES program under the FWPCA and, therefore, were subject to RCRA. Similarly, EPA did not err in applying the same investigation and remediation conditions for solid waste management units (SWMUs) to the properly designated AOC. Additionally, EPA’s imposition of interim corrective measures was proper, and EPA properly designated the challenged SWMUs. However, while EPA’s designation of one of the AOCs was proper, the EAB remanded EPA’s designation of a second AOC because the agency failed to show the requisite nexus between the AOC and the facility. In re Caribe General Electric Products, Inc., RCRA Appeal No. 98-3 (EAB Feb. 4, 2000) (44 pp.).

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:

red bar graphic HAZARDOUS WASTES AND SUBSTANCES:

red bar graphic SMCRA PROGRAM APPROVALS:

red bar graphic DOJ NOTICES OF SETTLEMENT:

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

DOCUMENTS AVAILABLE

  • Granting Air Quality Credit for Land Use Measures: Policy Options (EPA 9/99) (56 pp.) (ELR Order No. AD-4244)
  • Environmental Monitoring for Public Access & Community Tracking (EMPACT): Ozone Monitoring, Mapping, and Public Outreach: Delivering Real-Time Ozone Information to Your Community (EPA 9/99) (95 pp.) (ELR Order No. AD-4245)
  • Reduced Penalties for Disclosures of Certain Clean Air Act Violations (EPA 9/30/99) (4 pp.) (ELR Order No. AD-4246)
  • Ecological Risk Assessment and Risk Management Principles for Superfund Sites (OSWER No. 9285.7-28 P) (EPA 10/7/99) (9 pp.) (ELR Order No. AD-4247)
  • Exposure Model for Soil-Organic Fate and Transport (EMSOFT) User's Guide (EPA 2/97) (105 pp.) (ELR Order No. AD-4248)
  • Assessment of Existing Test Reports for Evaluating VOC Control Effectiveness (EPA 10/99) (114 pp.) (ELR Order No. AD-4249)
  • Final TSCA New Chemicals Program Policy for PBT Chemical Substances, 64 Fed. Reg. 60194 (Nov. 4, 1999) (EPA 10/22/99) (11 pp.) (ELR Order No. AD-4250)
  • Guidance for Performing Aggregate Exposure and Risk Assessments (Draft) (EPA 10/29/99) (59 pp.) (ELR Order No. AD-4251)
  • Estimating the Drinking Water Component of A Dietary Exposure Assessment (EPA 11/2/99) (44 pp.) (ELR Order No. AD-4252)
  • Improving Site Assessment: Pre-CERCLIS Screening Assessments (OSWER No. 9375.2-11FS) (EPA 10/99) (7 pp.) (ELR Order No. AD-4253)
  • Improving Site Assessment: Combined Preliminary Assessment/Site Inspection Assessments (OSWER No. 9375.2-10FS) (EPA 10/99) (7 pp.) (ELR Order No. AD-4254)
  • Improving Site Assessment: Abbreviated Preliminary Assessments (OSWER No. 9375.2-09FW) (EPA 10/99) (9 pp.) (ELR Order No. AD-4255)
  • Revised Model Prospective Purchaser Agreement (EPA 9/30/99) (4 pp.) (ELR Order No. AD-4256)
  • Expediting Requests for Prospective Purchaser Agreements (EPA 10/1/99) (5 pp.) (ELR Order No. AD-4257)
  • Regional Trends in Remedy Changes (EPA 8/99) (49 pp.) (ELR Order No. AD-4258)
  • Operating Principles for an Integrated EPA Enforcement and Compliance Assurance Program (EPA 11/18/96) (14 pp.) (ELR Order No. AD-4259)
  • Implementation of Part 71 Programs at the Expiration of Part 71 Interim Approvals (EPA 8/11/97) (3 pp.) (ELR Order No. AD-4260)
  • Regional Tracking Systems for Part 71 Fee Recipients (EPA 6/29/98) (2 pp.) (ELR Order No. AD-4261)
  • Interim Guidance on the CERCLA §101(10)(H) Federally Permitted Release Definition for Certain Air Emissions, 64 Fed. Reg. 71614 (Dec. 21, 1999) (EPA 12/3/99) (8 pp.) (ELR Order No. AD-4262)
  • Summary of the Listening Sessions: Observations & Recommendations for Guidance and Technical Assistance to Facilitate Water Quality and Designated Use for Waters Impacted by Combined Sewer Overflow (EPA 12/99) (26 pp.) (ELR Order No. AD-4263)
  • Summary of Participants' Comments at the EPA-WEF Experts Workshop on Implementing the WQ-Based Provisions in the CSO Control Policy Held on September 24, 1999 (EPA 12/99) (9 pp.) (ELR Order No. AD-4264)