Jump to Content

Weekly Update Volume 32, Issue 10

04/08/2002

LITIGATION

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

CAA, NAAQS, PARTICULATE MATTER (PM), OZONE:

The D.C. Circuit upheld EPA's promulgation of NAAQS for ozone and for PM having an aerodynamic diameter of 2.5 microns or less (PM2.5) against challenges from industry and environmental groups that the NAAQS were arbitrary and capricious. Previous decisions in the case addressed only whether the CAA adequately limits EPA's discretion, and, thus, are not dispositive of whether EPA reasonably exercised that discretion, the question at issue here. As to that issue, industry's claims that the PM2.5 NAAQS must be vacated because EPA did not apply any legal standard, much less the correct standard, must fail. In a passage that industry cited as evidence that EPA failed to identify a safe level of PM2.5, the Agency merely disclaimed any obligation to set primary NAAQS by means of a two-step process. Nothing in the statement implied that EPA failed to determine safe levels for fine PM; indeed, the Agency's establishment of new primary NAAQS demonstrates that it did reach a conclusion regarding safe PM2.5 levels. Additionally, another passage in the regulations documents EPA's rejection of lower standards, demonstrating that the Agency not only recognized, but acted upon, its statutory obligation to set the primary NAAQS at levels no lower than necessary to reduce public health risks. Further, EPA's inability to guarantee the accuracy or increase the precision of the PM2.5 NAAQS in no way undermines the standard's validity. And, contrary to industry's contention, EPA did not err in not considering whether reducing atmospheric concentrations of fine particles would increase levels of ozone or a different fine particle component. Moreover, EPA should not have set a stricter daily PM2.5 NAAQS rather than relying almost exclusively on the stringent annual standard as environmental groups claimed. Not only does the court owe deference to an agency's determination regarding the reliability of scientific evidence, but the environmental groups gave no reason to question EPA's judgment regarding the reliability of the risk assessment relied upon in setting the standard. Finally, EPA acted properly in promulgating the ozone NAAQS. The record is replete with studies demonstrating the inadequacies of the old one-hour averaging standard, EPA discussed at length the advantages of a longer averaging time, and the selection of a 0.08 parts per million standard was not arbitrary or capricious. American Trucking Ass'n v. Environmental Protection Agency, Nos. 97-1440 et al. (D.C. Cir. Mar. 26, 2002) (27 pp.).

ESA, LISTING DETERMINATIONS, DEADLINES:

The Ninth Circuit reversed a district court decision and held that the FWS does not have discretion under ESA §4 to make an initial determination to list a petitioned species beyond the ESA's 12-month deadline for making final determinations. Under ESA §4(b)(3)(A), to the maximum extent practicable, the FWS has 90 days after a petition to list a species is filed within which to make an initial determination. ESA §4(b)(3)(B) provides that if the initial determination is positive, the FWS has one year from the date the petition was received to make a final determination. According to the FWS' interpretation of the statute, it has 90 days to the maximum extent practicable to make the initial listing determination under §4(b)(3)(A), but if it is not practicable to complete the determination within 90 days, the finding may be delayed indefinitely. However, this interpretation would render §4(b)(3)(B) inoperable. The only way to give effect to both deadline provisions is to apply the 12-month deadline to both initial and final determinations. Additionally, the district court did not err in holding that it lacked discretion to grant injunctive relief that would have given the FWS more time to make a final determination. The ESA forecloses discretion when an agency misses ESA-imposed deadlines. Biodiversity Legal Foundation v. Badgley, Nos. 00-35076, -35089 (9th Cir. Mar. 21, 2002) (18 pp.).

RCRA, USTs, WATER CONTAMINATION, ALTERNATE WATER PROVISION:

The Fourth Circuit affirmed a district court decision entitling a state to recover from a petroleum producer and UST leasing company the costs of providing bottled water and filtration systems to homeowners whose well water was contaminated by benzene from leaking USTs. The state was authorized under RCRA to take the corrective action of providing the homeowners with alternate water because prompt action was necessary to protect human health and the environment. Additionally, the alternate water supply costs were properly classified as compensation to third parties for property damage, which is subject to a $100,000 deductible under the state's commercial leaking UST cleanup fund, and were not for the cleanup of environmental damage, which is subject to a $20,000 deductible that the petroleum producer had already met. Therefore, instead of having to seek compensation from the UST fund, the state is able to collect the alternate water costs from the petroleum producer. North Carolina v. Acme Petroleum & Fuel Co., No. 01-1665 (4th Cir. Mar. 19, 2002) (9 pp.).

TAKINGS, PREJUDGMENT INTEREST, NOMINAL DAMAGES:

The Ninth Circuit affirmed a district court holding that where compensation was paid long after a taking, an individual was entitled to prejudgment interest, but remanded the case for a redetermination of the amount of interest to be awarded. After finding a nuisance on the individual's property due to the presence of several trucks and buses, a county removed the vehicles and sold them for parts. The individual brought suit against the county and was successful on his takings and due process claims. The district court correctly concluded that the individual was entitled to prejudgment interest to ensure that he was put in as good a pecuniary position as he would have occupied had the county paid him for his vehicles when it took them. The court erred, however, in determining the proper rate of interest. In determining the amount of prejudgment interest due in actions predicated on an unconstitutional taking, the court must examine what a reasonably prudent person investing funds so as to produce a reasonable return while maintaining safety of principal would receive. On remand, the court must determine a proper and reasonable interest rate based on the "reasonably prudent investor" standard. Additionally, the district court should have awarded the individual nominal damages on his due process claim because he was entitled to judgment as a matter of law on this claim. Schneider v. County of San Diego, No. 00-55709 (9th Cir. Mar. 21, 2002) (26 pp.).

NEPA, RESOURCE MANAGEMENT PLAN (RMP), TIMBER SALES, EIS, EA:

The Ninth Circuit reversed a district court holding that an environmental group's NEPA claims against the BLM were not ripe and that an EIS prepared for the Coos Bay RMP for the Coos Bay District and an EA prepared for a proposed timber sale in the Sandy-Remote Analysis Area within the Coos Bay District were adequate. The group brought suit against the BLM claiming that it failed to properly analyze the impact of a fungus in it preparations of the EIS and EA. Because NEPA simply guarantees a particular procedure, a person with standing who is injured by a failure to comply with the NEPA procedure may complain of that failure at the time the failure takes place, for the claim can never get any riper. If there was an injury under NEPA, it occurred when the allegedly inadequate EIS was promulgated. The group's claims, therefore, are ripe. Additionally, the EIS for the Coos Bay RMP clearly should have included an analysis of the likely impact of the RMP on the fungus and the trees in the area. However, the only discussion of the fungus in the EIS is contained in a brief reference to BLM guidelines that describe strategies to minimize the spread of the fungus. Although the guidelines may contain a detailed analysis of the impact of the fungus on the trees in the area, they have never been reviewed under NEPA, and the BLM is not excused from its responsibility under NEPA to perform an analysis of the effects of the fungus on the trees in an EIS specifically addressed to the Coos Bay RMP. Because the Coos Bay EIS may not tier to the guidelines, its adequacy depends on the analysis contained in the EIS itself, which is limited to two sentences that are obviously inadequate. Similarly, the EA prepared for the Sandy-Remote Area impermissibly attempts to tier both to the EIS for the Coos Bay RMP and to the guidelines. Moreover, the Sandy-Remote Area EA fails to adequately analyze the cumulative impacts of the proposed timber project. Kern v. United States Bureau of Land Management, No. 99-35254 (9th Cir. Mar. 22, 2002) (33 pp.).

INSURANCE, AMBIGUITY, SETTLEMENT:

The Third Circuit held that under U.S. Virgin Islands law, an insurer must provide coverage to an oil company for injuries company workers suffered in an explosion at the company's St. Croix oil refinery. After settling the claims that the injured employees had filed against it, the oil company sued the insurer in an attempt to recover under its insurance policy. The district court found that both parties presented compelling interpretations of the policy, but nevertheless concluded that the oil company's claim was unambiguously excluded from coverage under the policy. However, the very fact that both parties were able to offer conflicting, yet compelling, interpretations establishes the essential ambiguity in the policy. Moreover, under Virgin Islands law, any ambiguity in an insurance policy is to be construed against the insurer and in a manner that is more favorable to coverage. Here, there are no disputed material facts outside the interpretation offered by the oil company. The district court, therefore, erred and the oil company is entitled to judgment as a matter of law. In addition, the district court contravened Virgin Islands law in limiting the insurance company's exposure to the amount defined in the first-tier of the oil company's two-tiered settlement agreement with its employees.Where an insured has recovered a judgment against an insurer after settling underlying claims, the insured is legally obligated to pay the injured parties pursuant to the terms of any settlement agreement, and the insurer remains liable to the insured up to the policy limits where it has undertaken to pay amounts the insured is obligated to pay by adjudication or compromise. Amereda Hess Corp. v. Zurich Insurance Co., Nos. 99-3505, -3512 (3d Cir. Mar. 6, 2002) (7 pp.).

FIFRA, DAMAGE CLAIMS, PREEMPTION:

The Eighth Circuit held that all of an individual's claims for damages are based on a pesticide's label and are, therefore, preempted by FIFRA. After applying the pesticide to his horses over a six week period, the individual developed acquired aplastic anemia that necessitated large doses of steroids, blood transfusions, and a hip replacement. The individual sued the pesticide manufacturer claiming damages for the injuries resulting from the use of the pesticide on his horses. The court has held in the past that once a label is approved, FIFRA expressly provides a defense, arising from preemption, against certain state-law claims. Thus, the individual's failure to warn and breach of warranty claims were preempted by FIFRA. In spite of U.S. Supreme Court case law and state court decisions to the contrary, the law of the circuit remains until modified or overruled by the Eighth Circuit en banc. Additionally, the individual's claim for defective design was actually a claim to the pesticide's label, and, therefore, preempted by FIFRA. Contrary to the individual's suggestion, an expert did not testify that a chemical in the pesticide made it defective or unreasonably dangerous. Rather, the expert testified that the pesticide is an EPA-registered and approved product that can be safely used under appropriate circumstances, but that the expert personally uses an alternative pesticide when spraying his own horses. Netland v. Hess & Clark, Inc., No. 01-2181 (8th Cir. Mar. 26, 2002) (9 pp.).

TURTLE EXCLUDER DEVICE (TED), INTERNATIONAL LAW:

The Federal Circuit reversed the Court of International Trade's holding that the U.S. government's decision to permit the importation of TED-caught shrimp from uncertified nations is not in accordance with international law, but affirmed the court's denial of injunctive relief and attorneys fees to an environmental group challenging the government's position. Section 609(b) of Public Law 101-162 does not prohibit importation of all shrimp or shrimp products from a country not certified under the statute; the government may permit the import of individual shipments from uncertified countries if exporters represent that those particular shipments were caught without the use of commercial fishing technology that may adversely affect sea turtles protected by domestic law. The plain language of the statute provides no basis for embargoing shipments of shrimp that have not been harvested with commercial fishing technology that may harm sea turtles. Because TED-caught shrimp have not been harvested with commercial fishing technology that may harm sea turtles, the statutory language does not support embargoing TED-caught shrimp from uncertified countries. Moreover, if certification under §609(b) was the only way shrimp could be imported into the United States, then language in the statute prohibiting shrimp that may have been harvested with commercial fishing technology that may adversely affect sea turtles is largely superfluous. Additionally, nothing in the legislative history supports the group's conclusion that the statute must be applied on a nation-by-nation basis or that the principal goal of the statute is the protection of endangered sea turtle species worldwide. Therefore, the group is not entitled to an injunction or attorneys fees under the Equal Access to Justice Act. Turtle Island Restoration Network v. Evans, Nos. 00-1569 et al. (Fed. Cir. Mar. 21, 2002) (38 pp.).

ENERGY REORGANIZATION ACT (ERA), CONTRACTS, EMPLOYEE PROTECTION:

The Third Circuit dismissed an individual's claim that a nuclear power plant violated the ERA's employee protection provisions when it declined to hire the individual after he refused to sign a records release that included a liability release. The individual had previously brought a whistleblower complaint against a previous employer, and he believed that signing the liability release would release his ERA claim against his previous employer. After the power plant refused to hire him, the individual filed a complaint with the U.S. Department of Labor. The Secretary of Labor found that the power plant had violated the ERA when it refused to hire the individual, and an administrative law judge awarded damages. However, under the common law burden shifting procedures that apply, the individual must prove a prima facie case of unlawful retaliation, and he failed to meet this burden. For a prima facie case, the individual must demonstrate he engaged in protected activity, the power plant's awareness of this protected activity, an adverse employment action, and a significant inference of retaliatory motive. The individual could not show that he engaged in protected activity. The employment release at issue did not purport to waive liability for the power plant's employment decisions or for other claims that the individual might make under the ERA. It merely released potential claims for privacy infringement, and such a release does not constitute protected activity under the ERA. Moreover, even if the individual had established a prima facie case, he failed to offer substantial evidence to support a conclusion that the power plant's legitimate reasons for refusing to hire him without signing the release were pretextual. Doyle v. U.S. Secretary of Labor, No. 00-1589, -2035 (3d Cir. Mar. 27, 2002) (17 pp.).

WETLANDS, JURISDICTION:

A district court held that the U.S. Army Corps of Engineers exceeded its authority in extending jurisdiction over property that contains wetlands in light of its own regulations and the U.S. Supreme Court's decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), 531 U.S. 159, 31 ELR 20382 (2001). After discovering that the owners of the property were discharging dredged or fill material onto the property without a CWA §404 permit, the Corps ordered a cease and desist order. The property owners ignored it and this lawsuit ensued. The Corps improperly extended jurisdiction over the property. Only by multiple drainage ditches, a culvert under a highway, and miles of non-navigable waters are the wetlands on the property even remotely connected to navigable waters or a water body capable of being used by the public for the purposes of transportation or commerce. Therefore, the wetlands on the property are not adjacent to navigable waters by any reasonable definition of adjacency. Additionally, the state environmental board's claimed jurisdiction over the property was improper because it exercised jurisdiction based on the Corps' erroneous assertion of jurisdiction. United States v. Newdunn Associates, Nos. 2:01cv508, 4:01cv 86 (E.D. Va. Apr. 3, 2002) (Morgan, J.) (36 pp.).

RCRA, STANDING, IMMINENT AND SUBSTANTIAL ENDANGERMENT:

A district court held that an association of churches had standing to bring a RCRA citizen suit against the owner of a site contaminated with chromium, but issues of imminent and substantial endangerment prevent granting the association summary judgment on the issue of the owner's RCRA liability. The association alleged that the owner failed to properly and timely clean up chromium waste at the site, and, thus, brought a RCRA citizen suit seeking cleanup. The owner claimed that the association lacked standing. The association, however, had associational standing. All of the association's members presented sufficient facts to show that they suffered an actual injury sufficient to satisfy the injury-in-fact requirement. Further, the injuries alleged by the association and its members were fairly traceable to the owner's failure to clean up the site. Likewise, an adequate cleanup of the site would satisfy the redressability prong of standing. Further, the interests at stake in the litigation are germane to the association's organizational purpose of improving the quality of life in the county and in building affordable housing on areas such as the 32-acre site. The association's suit also does not require the participation of individual association members because the association seeks cleanup of the site, not individual relief. However, summary judgment cannot be granted to the association on the issue of the owner's RCRA liability. Although chromium is a hazardous waste and the owner has contributed to its storage, transport, or disposal, issues exist as to the imminent and substantial endangerment that the chromium poses to the health of the surrounding county. These issues are questions of fact that must be addressed at trial. Interfaith Community Organization v. Honeywell International, Inc., No. 95-2097 (DMC) D.N.J. Mar. 12, 2002) (30 pp.).

CWA, CITIZEN SUIT, DISCHARGE OF POLLUTANTS, STANDING:

A district court held that a group of individuals did not have standing to bring a CWA citizen suit against a ski resort for discharging pollutants without a permit. In 1997, the resort constructed and put into use a terrain park, primarily for snowboarders, on the far side of its property, which directly faces the individuals' property. The individuals claimed that pollutants contained in the river water used to make artificial snow for the resort reaches a creek on their property. Although the evidence shows injury from increased water runoff traceable to the addition of artificial snow, the individuals failed to point to anything that shows that they are injured by the pollutants the ski resort is allegedly discharging without a permit. Because the individuals failed to present evidence showing any injury-in-fact to them that is traceable to the resort's alleged discharge of pollutants, they lack standing. Fisher v. Chestnut Mountain Resort, Inc., No. 98 C 50221 (N.D. Ill. Mar. 19, 2002) (Reinhard, J.) (12 pp.).

ESA, LISTING, VIABLE POPULATION:

A district court held that the FWS' decision that the westlope cutthroat trout (WCT) did not warrant listing as an endangered or threatened species was arbitrary and capricious. FWS concluded that listing WCT under the ESA was unwarranted because viable, self-sustaining WCT stocks remain widely distributed throughout the species’ historic range and because small headwater populations of WCT are relatively secure. The FWS’ listing determination for WCT, however, does not reflect a reasoned assessment of the statutory listing factors on the basis of the best available science. The inclusion of hybrid WCT stocks in the viable population of WCT considered for listing was arbitrary and capricious. Although the FWS indentified hybridization as an ongoing threat to the WCT, the record is devoid of any evidence that the agency evaluated that threat in determining whether the WCT population was viable. Moreover, once it identified hybridization as a threat, the FWS nevertheless included hybrid fish in the population considered for listing. If hybridization is a threat, it seems logical that hybrid stock should not be included in the population of WCT reviewed for protected status. The court, therefore, remanded the WCT listing determination for reasoned decisionmaking. Also on remand, the FWS must reconsider the threats to isolated headwater populations of WCT in light of the new WCT population it determines to be appropriate for listing evaluation. American Wildlands v. Norton, No. 00-2521(EGS) (D.D.C. Mar. 31, 2002) (Sullivan, J.) (29 pp.).

SMCRA, ALTERNATIVE BONDING SYSTEM (ABS), REVOCATION OF STATE PROGRAMS:

A district court denied an environmental group's motions challenging the Office of Surface Mining's (OSM's) approval of a West Virginia law amending the ABS requirements under the state's SMCRA-approved mining program. The law at issue was enacted after the group challenged the adequacy of the state's ABS and the OSM's failure to review the adequcy of the state mining program. Once the law was enacted, the OSM approved its amendment to the state surface mining program, but deferred the question of whether the law would eliminate the deficiencies in the state's ABS. The group sought review of the OSM's bifurcated approval of the law and alleged that the state had failed to submit 16 additonal amendments to its mining law required by OSM and that OSM unreasonably delayed action relating to 9 other required state amendments. However, summary judgment cannot be granted to the group on the question of OSM's bifurcation of approval of the law. In bifurcating the approval process, OSM relied on an internal directive that allows approval of an ABS amendment even if it does not fully remedy all deficiencies. Although such directives are not afforded the same deference as rulemakings, they are afforded some weight. Moreover, OSM has promised to make its final decision regarding the state program by May 28, 2002, and OSM has promised that if the law is not approved, it will begin proceedings under 30 C.F.R. Part 733 to withdraw approval of the state program. Further, OSM's rationale for bifurcating approval in order to obtain more funds for bonding while providing additional time to consider complex issues in the law is reasonable. Thus, considering OSM's internal directive, the rationale for bifurcation, and its time-sensitive promise, bifurcation was neither arbitrary or capricious, nor inconsistent with SMCRA. In addition, although OSM failed to take the required actions on the additional state amendments, summary judgment on the claims is moot because OSM promised to approve or disapprove all of the state's amendments by May 1, 2002, or initiate proceedings under 30 C.F.R. Part 733 by May 15, 2002. West Virginia Highlands Conservancy v. Norton, No. 2:00-1062 (S.D. W. Va. Mar. 18, 2002) (Haden, J.) (30 pp.).

SMCRA, SUBSIDENCE AND UNDERGROUND MINING ACTIVITIES, PARKS AND PROTECTED AREAS:

A district court held that SMCRA §1272(e) prohibits subsidence and underground mining actitivites that might lead to subsidence in parks and protected areas. The Secretary of the Interior interpreted §1272(e), which prohibits surface coal mining operations in parks and protected areas, as not prohibiting subsidence actitivities in those areas. Contrary to the Secretary's interpretation, however, "surface coal mining operations" encompasses both surface coal mines and the surface effects of underground coal mines. This is the most natural reading of the statute and is consistent with SMCRA's purpose, structure, and legislative history. Therefore, the Secretary's interpretation was clearly errroneous. Citizens Coal Council v. Norton, No. 00-0274(JR) (D.D.C. Mar. 28, 2002) (Robertson, J.) (13 pp.).

JURISDICTION, FLORIDA PANTHER:

A district court held that it did not have jurisdiction over claims brought by environmental groups against various governmental agencies protesting the issuance by the U.S. Army Corps of Engineers of 23 permits for various kinds of construction in South Florida and their effect on the Florida panther. Although the groups purported to challenge the permits, upon closer inspection it turns out that most, if not all, of the permitted work had been done and that the groups were really seeking an injunction that would order the Corps and the FWS into a consultation to design a program that would provide broader systemic relief for the plight of the Florida panther. However, the U.S. Supreme Court has held that the final agency action requirement of APA §704 precludes federal court jurisdiction of suits for broad programmatic relief. Here, the challenged permits are really only examples of what the groups see as rampant unlawfulness in the permitting program of the Corps and the FWS. Similarly, the groups' prayer for judicial declarations that the permits and various policies of the agencies are invalid does not save their case. Because the groups do not seek site-specific relief, the prayer for declaratory relief is merely another way of approaching the programmatic relief that the court does not have jurisdiction to grant. National Wildlife Federation v. Caldera, No. 00-1031 (JR) (D.D.C. Mar. 26, 2002) (Robertson, J.) (15 pp.) (Defense counsel included Mark A. Brown of the Department of Justice in Washington, DC.).

EQUAL ACCESS TO JUSTICE ACT (EAJA), ATTORNEYS FEES:

A district court awarded an individual's attorneys $95,153.02 in attorneys fees and expenses under the EAJA for defending the individual in a CERCLA suit brought by the government. The government sued the individual under CERCLA §104(e) seeking access to his property to investigate possible hazards and to remove quantities of his property and other materials. The individual prevailed in the district and appellate courts, then petitioned the district court under the EAJA for an award of attorneys fees for the proceedings in both courts. Although one of the attorneys took the case on a pro bono basis, that does not preclude an award of attorneys fees under the EAJA. Additionally, it was reasonable for that attorney to bring on other attorneys to work with him on the case. Further, the time claimed for the district court proceedings that resulted in a ruling in the individual's favor, including time spent on an argument on which the individual did not prevail, is reasonable. However, the individual failed to prove that all of the time spent in preparation of a notice of cross-appeal, a settlement conference, and the appellate oral argument was necessary and reasonable. Therefore, the time spent on those projects was reduced and the attorneys fees were adjusted accordingly. United States v. Tarkowski, No. 99 C 7308 (N.D. Ill. Mar. 26, 2002) (12 pp.).

Copyright© 2002, Environmental Law Institute, Washington, DC All rights reserved

THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register.

AIR:

  • EPA promulgated amendments to the NESHAP general provisions and amended the rule that establishes equivalent emission limitations by permit under CAA §112(j). 67 FR 16581 (4/5/02).
  • EPA amended the NEHSAP for the portland cement manufacturing industry. 67 FR 16613 (4/5/02).
  • EPA amended the NESHAP for solvent extraction for vegetable oil production plants. 67 FR 16317 (4/5/02).
  • EPA proposed NESHAPs for the miscellaneous organic chemical manufacturing source category and the miscellaneous coating manufacturing source category.67 FR 16153, 16203, 16253 (4/4/02).
  • EPA proposed NESHAPs for organic liquids distribution (non-gasoline) operations that are carried out at storage terminals, refineries, crude oil pipeline stations, and various manufacturing facilities. 67 FR 15673 (4/2/02).
  • EPA entered into a proposed settlement agreemeent under CAA §113(g) in Aluminum Ass'n v. U.S. EPA, No. 00-1211 (D.C. Cir. Apr. 1, 2002), which concerns NESHAPs for secondary aluminum production. 67 FR 16374 (4/5/02).
  • EPA announced the availability of applicability determinations, alternative monitoring decisions, and regulatory interpretations that EPA has made under the new source performance standards and NESHAPs. 67 FR 14936 (3/28/02).
  • EPA announced that it has designated one new reference method for measuring concentrations of particulate matter (PM) having an aerodynamic diameter of 10 microns or less in ambient air, four new equivalent methods for measuring concentrations of PM having an aerodynamic diameter of 2.5 microns or less in ambient air, and one new reference method for measuirng concentrations of nitrogen dioxide in ambient air. 67 FR 15566 (4/2/02).
  • EPA delegated authority to the West Virginia Department of Environmental Protection to implement and enforce its hazardous air pollutant regulations for perchloroethylene drycleaning facilities, hard and decorative chromium electroplating and chromium anodizing tanks, ethylene oxide sterilization facilities, halogenated solvent cleaning, and secondary lead smelting that have been adopted by reference from the federal requirements set forth in the CFR. 67 FR 15486 (4/2/02).
  • EPA updated the outer continental shelf (OCS) air regulations as they apply to OCS sources off the coast of Alaska. 67 FR 14646 (3/27/02).

DRINKING WATER:

  • EPA announced that it plans to conduct a demonstration program on the treatment of arsenic in drinking water. 67 FR 14951 (3/28/02).

HAZARDOUS WASTES & SUBSTANCES:

  • EPA issued a final determination not to list as hazardous certain wastes generated from the production of paint. 67 FR 16261 (4/4/02).
  • EPA proposed revisions to the RCRA hazardous waste program to allow a conditional exclusion from the definition of solid waste. 67 FR 13683 (3/25/02)
  • EPA entered into a proposed administrative settlement under CERCLA §122(i) in connection with the Environmental Waste Resources site located near Coal City, Illinois. 67 FR 16376 (4/5/02).
  • EPA entered into a proposed settlement under CERCLA §122(h) in connection with the Murray Ohio Superfund site in Lawrenceburg, Tennessee. 67 FR 15570 (4/2/02).
  • EPA entered into a proposed administrative order on consent under CERCLA §106 in connection with the Old American Zinc Superfund site in Illinois. 67 FR 15195 (3/29/02).

HEALTH ASSESSMENTS:

  • The Agency for Toxic Substances and Disease Registry announced the availability of the draft Public Health Assessment Guidance Manual (Update). 67 FR 15574 (4/2/02).

NATIONAL PARKS:

  • The National Park Service proposed to postpone for one year the implementation of existing snowmobile regulations in the Yellowstone National Park, the John D. Rockefeller, Jr. Memorial Parkway, and the Grand Teton National Park. 67 FR 15145 (3/29/02).

NEPA:

  • The Department of the Army revised its policy and procedures for implementing NEPA and CEQ regulations. 67 FR 15289 (3/29/02).

SMCRA:

  • OSM received revisions to a previously proposed amendment to Oklahoma's regulatory program under SMCRA. 67 FR 16341 (4/5/02).

TRANSPORTATION:

  • The National Highway Traffic Safety Administration established 20.7 miles per gallon as the average fuel economy standard for light trucks manufactured in the 2004 model year. 67 FR 16052 (4/4/02).
  • DOT's Research and Special Programs Administration proposed to amend the hazardous materials regulations regarding the transportation of lithium batteries. 67 FR 15510 (4/2/02).

WATER QUALITY:

  • EPA proposed to designate a new Ocean Dredged Material Disposal Site in the Atlantic Ocean offshore Wilmington, North Carolina, as an EPA-approved ocean dumping site for the disposal of suitable dredged material. 67 FR 15348 (4/1/02).
  • EPA announced the availability of the administrative record file for 98 total maximum daily loads for waters listed in the Calcasieu and Ouachita river basins under CWA §303(d) that were completed in response to a court order in the lawsuit Sierra Club v. Clifford, No. 96-0527 (E.D. La.). 67 FR 15196 (3/29/02).

WILDLIFE:

  • FWS proposed critical habitat for 61 of the 70 species known historically from the islands of Maui and Kahoolawe that are listed under the ESA. 67 FR 15855 (4/3/02).
  • NOAA proposed to prohibit the use of all pound net leaders measuring 12 inches and greater stretched mesh and all net leaders with stringers in the Virginia waters of the mainstem Chesapeake Bay from May 8 to June 30 each year in order to conserve endangered and threatened sea turtles. 67 FR 15160 (3/29/02).

DOJ NOTICES OF SETTLEMENTS:

  • United States v. Agere Systems, Inc., No. 02-CV-1681 (E.D. Pa. Mar. 27, 2002). Settling CERCLA defendants must pay $1,100,000 in past U.S. response costs incurred at the Berks Landfill Superfund site in Spring Township, Pennsylvania. 67 FR 16122 (4/4/02).
  • United States v. Atlantic Richfield Co., No. 02-35-BU-RFC (D. Mont. Mar. 25, 2002). Settling CERCLA defendants must implement the EPA-selected cleanup plan for the Mine Flooding Operable Unit in Butte, Montana, must reimburse EPA for its past costs in responding to releases of hazardous substances at the site, and must make a lump sum payment to EPA to cover its anticipated future costs in overseeing and monitoring the cleanup at the site. 67 FR 16123 (4/4/02).
  • United States v. Ferro Corp., No. 2:02 CV 115 (N.D. Ind. Mar. 18, 2002). A settling CAA defendant that violated the Indiana SIP and three administrative orders issued by EPA must pay $1,050,000 in civil penalties to the United States, must pay $600,000 in civil penalties to the state of Indiana, must pay $1,350,000 to the city of Hammond, Indiana, must hire an independent consultant to conduct an environmental management system audit at its facility, and must finance a brownfield cleanup project in the city of Hammond. 67 FR 16123 (4/4/02).
  • United States v. Pharmacia, No. CV-02-PT-0749-E (N.D. Ala. Mar. 25, 2002). Settling CERCLA defendants must implement and pay for the remedial investigation and feasibility study (RI/FS) at the Anniston PCB site in Anniston, Alabama, must provide over $3.2 million to an education trust fund for children of west Anniston that have learning disabilities or otherwise need additonal educational services, must reimburse the United States for all future oversight costs, and must provide funding for a technical assistance plan that will provide technical assistance to the community so that the community can play a meaningful role in the RI/FS process. 67 FR 16124 (4/4/02).
  • United States v. Hybard Paul, No. 01-0184-P-L (S.D. Ala. Mar. 4, 2002). A settling CERCLA defendant must pay $250,000 in past and future U.S. response costs incurred and to be incurred at the Walker Springs Wood Treater Superfund site in Walker Springs, Alabama. 67 FR 13661 (3/25/02).
  • United States v. City of Youngstown, Ohio, No. 4:98 CV 2438 (N.D. Ohio Mar. 5, 2002). A settling CWA defendant that violated the terms and conditions of its NPDES permits at its wastewater treatment plant and throughout its sewer collection system must pay a $60,000 civil penalty and must perform a variety of injunctive measures, including the elimination of certain specified direct discharges of sanitary sewage and process wastewater that are not currently connected to the Youngstown, Ohio, collection system, the development and implementation of Youngstown's long-term control plan as required by its discharge permit, the installation of additional level sensing equipment at certain specified overflow structures, and the implementation of a revised inspection schedule for combined sewer overflows. 67 FR 13662 (3/25/02).
  • United States v. A.O. Smith Corp., No. 1:02-CV-0168 (W.D. Mich. Mar. 13, 2002). Settling CERCLA defendants must perform the EPA-selected remedy for the Ionia City Landfill Superfund site in Ionia, Michigan; the defendants have already paid all past response costs under a prior consent decree. 67 FR 14975 (3/28/02).

  • United States v. Doe, as Executrix of Barbera Estate, No. 96 Civ. 8593 (BSJ) (S.D.N.Y. Feb. 20, 2002). Four generators of hazardous substances transported to the Port Refinery Superfund site in the Village of Rye Brook, New York, must pay $415,500 to the United States. 67 FR 14976 (3/28/02).

  • United States v. Kuroshima Shipping, S.A., No. A02-0057 (JWS) (D. Alaska Mar. 18, 2002). Settling Oil Pollution Act defendants that own and operate a vessel that discharged oil in the area of Summer Bay, Unalaska Island, Alaska, must pay $644,017 to federal and state natural resource trustees for their conduct of the restoration plan, must place $9,000 into a court registry until the trustees determine whether the amount is necessary for the field component of the restoration plan aimed at restoring vegetation, and must pay $66,158.09 in damage assessment costs. 67 FR 14976 (3/28/02).

Copyright© 2002, Environmental Law Institute, Washington, DC All rights reserved. 

THE CONGRESS

Congress adjourned for the Spring Work Period on March 22, 2002. ELR will continue coverage of congressional activities when Congress reconvenes on April 8, 2002.

Copyright© 2002, Environmental Law Institute, Washington, DC All rights reserved. 

IN THE STATES

Click on a state name below to see its information in ELR UPDATE. Or go to http://www.elr.info/State/stateupdate.cfm to view the complete section.

Copyright© 2002, Environmental Law Institute, Washington, DC All rights reserved.

INTERNATIONAL

GENERAL

  • U.N. Undersecretary General for Humanitarian Affairs Kenzo Oshima called for a multi-nation, multi-year effort to clean up radioactive areas affected by the Chernobyl disaster. Sixteen years after the incident, 5.7 million people continue to live in areas with high levels of radioactivity.
  • The U.N. Environment Programme, the World Business Council for Sustainable Development, and the World Resources Institute (WRI) issued a report, Tomorrow's Market: Global Trends and Their Implications for Business. The report addresses using market solutions to address problems such as population, nutrition, health, education, consumption, energy, emissions, efficiency, ecosystems, agriculture, freshwater, urbanization, mobility, communications, labor, democracy, accountability, and privatization. See http://www.wbcsd.org
  • The European Union's European Environment Agency issued a report that concluded that it is virtually impossible to keep genetically modified and natural crops separate. See http://reports.eea.eu.int/environmental_issue_report_2002_28/en/GMOs%20for%20www.pdf
  • "Individual producers must finance take-back schemes for discarded computers, hairdryers and other electrical appliances," said the European Parliament's Environment Committee in a bid to toughen up a draft directive aimed at tackling the escalating problem of electrical and electronic waste. The Committee "calls for 'mandatory individual producer responsibility,' an approach rejected in the common position by the Council [of Ministers], which would instead give producers the choice of collective or individual schemes. It also calls for 'extended producer responsibility,' to encourage manufacturers to design eco-friendly products and stop the practice of installing 'clever chip' devices designed to prevent recycling. A further demand is for Member States to compel producers to provide up-front guarantees to cover the future costs of disposing of their products, in order to prevent irresponsible producers ('free riders') from disappearing from the market and leaving others to pay for the disposal of their waste." In addition, "[a]n overwhelming majority of the committee supports an amendment banning consumers from discarding electrical and electronic waste with ordinary household rubbish and setting a mandatory collection target of six kg of electrical waste per head, per year, for each household. The target . . . must be achieved by 31 December 2005. By contrast, the Council has set a voluntary target of only four kg a year to be met within thirty-six months of the directive's entry into force. The committee would also raise the targets for recovery and for re-use and recycling by ten per cent from the Council's rates for most types of equipment. Moreover, it wants ozone-depleting gases to be removed from all equipment containing them, not just refrigerators and freezers, and would like a minimum 5 per-cent recycling requirement for the plastic components of the discarded products. Other proposed amendments would tighten up the provisions on information for users about the new rules and require products to be marked to show that they must not just be thrown in the bin." See http://www.europarl.eu.int/press/index_en.htm
  • In addition, the Committee said it supports, with amendments, a Commission proposal that would allow member states to pursue criminal prosecutions against violators of European Union environmental laws. "The committee is proposing amendments to the draft directive to ensure that incitement to breaking the law is also classed as an offence. It has added pollution of the air, soil or water with harmful substances or ionising radiation to the list of offences and has deleted the annex itemising the existing Community legislation protecting the environment, preferring to refer to breaches of law in general terms. The committee is throwing its weight behind this directive, on which Parliament and Council share decision-making power, rather than a parallel initiative by the Council which would keep criminal sanctions against polluters solely within the competence of the Member States in Council." See http://www.europarl.eu.int/press/index_en.htm
  • Greenpeace staged a demonstration at China's Great Wall to support proactive international efforts to reduce deforestation. See http://www.greenpeace.org/saveordelete/news/march24_china.html
  • Environment Australia issued State of the Environment 2001. See http://www.ea.gov.au/soe/2001/index.html The report notes that "the degradation of river and land quality through salinity is a major challenge; many of the key threats to biodiversity still persist, including salinity, changing hydrological conditions, land clearing and fragmentation of ecosystems; there is still a net loss of vegetative cover, with broadacre clearing continuing, particularly in Queensland and New South Wales; pressure on our coral reefs and estuarine and coastal waters continues unabated from the downstream effects of land use and other human activities; our cities and towns continue to place unsustainable pressures on our environment; and the loss of heritage places, including indigenous heritage, continues."
  • Anne McLellan, Canada's Minister of Health, introduced a bill to modernize pesticide legislation. The bill would require special protection for infants and children; take into account pesticide exposure from all sources, including food and water, and consider cumulative effects of pesticides that act in the same way; and support pesticide risk reduction. In addition, the bill would, Health Canada said, "make the registration system more transparent by establishing a public registry to allow access to detailed evaluation reports on registered pesticides; allowing the public to view the test data on which these pesticide evaluations are based; and, allowing the Pest Management Regulatory Agency (PMRA) to share scientific studies with provincial/territorial and international regulators, which will enhance the process for international joint reviews of pesticides, giving Canadian growers equal access to newer, safer pesticides so they can be competitive in the marketplace." Health Canada also said the bill would "strengthen post-registration control of pesticides by requiring pesticide companies to report adverse effects; requiring re-evaluations of older pesticides 15 years after they are registered and providing the Minister with the authority to remove pesticides from the market if required data are not supplied; and, providing increased powers of inspection and higher maximum penalties, up to $1 million for the most serious offences, when pesticides are not marketed or used in accordance with the law." See http://www.hc-sc.gc.ca/english/media/releases/2002/2002_17.htm
  • The European Environment Agency issued a report, Biodegradable Municipal Waste Management in Europe. It calls for higher disposal tip fees to promote recycling, as well as bans on landfilling of biodegradable waste. See http://reports.eea.eu.int/topic_report_2001_15/en
  • The journal Nature, in an "editorial note," repudiated an article it previously published that claimed that genetically modified corn had shown up in Mexico, despite a ban on its use there. The authors stood by their findings but the journal said the piece was flawed and should not have been published.
  • A new initiative in Ontario designed to reward businesses that show environmental leadership will offer incentives to companies that achieve environmental performance targets, said Environment Minister Elizabeth Witmer. See http://www.ene.gov.on.ca/envision/news/2002/040101.htm
  • The U.N. University, in a report issued in advance of the World Summit, suggested it was time to create a World Environment Organization akin to the World Trade Organization. See http://www.ias.unu.edu/binaries/NYPrepComReport3.pdf and http://www.unu.edu/hq/rector_office/press2002/pre08.02.html
  • The U.N. Commission on Sustainable Development held its third preparatory session in advance of the World Summit on Sustainable Development (Aug. 26-Sept. 4 in Johannesburg). See http://www.un.org/News/Press/docs/2002/envdev629.doc.htm
  • China said it would set aside $160 million in funding for the development and production of electric-powered vehicles for use in urban areas.
  • Canada's Environment Minister announced that tougher emission standards would be imposed on on-road vehicles and engines. The proposed On-Road Vehicle and Engine Emission Regulations, published in the March 30, 2002, Canada Gazette, Part I, call for cleaner vehicles to be available in Canada starting September 1, 2003. The measures would result in progressively greater annual emission reductions of pollutants that form smog. It is estimated that in 2020, the proposed regulations will contribute to the following emissions reductions from new on-road vehicles in Canada: nitrogen oxides (-74%); particulate matter (-64%); carbon monoxide (-23%); and volatile organic compounds (-14%). The measure will also result in decreased emissions of several pollutants, including benzene and acrolein, which have
    been declared "toxic" under the Canadian Environmental Protection Act of 1999. See http://www.ec.gc.ca/Press/2002/020404_n_e.htm
  • World Wide Fund for Nature Japan's director said its was time for "everyone [to] calm down, be realistic, and sit and talk" regarding Japan's effort to partially lift an international prohibition on commerical whaling. He may, however, have been speaking without authority. See http://www.guardian.co.uk/japan/story/0,7369,677386,00.html And a poll conducted in Japan suggested that less than half of its citizens support the government's position.
  • Norway, which does permit commercial whaling, began exporting meat and blubber to Japan.
  • Environment Canada set forth its regulatory agenda for fiscal year 2002-2003. See http://www.tbs-sct.gc.ca/tb/estimate/pub30203e.html
  • The WRI's Global Forest Watch issued a series of reports based on new maps covering nearly half of the world's forests. The reports conclude that vast areas of remaining intact or old-growth and primary forests are being degraded as the result of unsustainable development practices. The reports cover Chile, Central Africa, Indonesia, North America, Russia, and Venezuela. "As we examined what we thought were still vast, untouched stretches of intact forests in the world, we came to the conclusion that they are fast becoming a myth," said Jonathan Lash, WRI's president. "Much of the green canopy that is left is, in reality, already crisscrossed by roads, mining and logging concessions." The reports "note that while many countries have taken great strides in enacting laws to protect their forests, in many places regulations are simply not enforced. In Indonesia, for example, about 70% of its timber production is illegally logged. In Central Africa, Global Forest Watch found logging concessions already cover more then half of the world's second largest tropical rainforest. Initial data indicate most lack even a basic plan for managing these forests." See http://www.wri.org/wri/press/gfw_anniversary.html and http://www.globalforestwatch.org/english/index.htm

CLIMATE CHANGE

Copyright© 2002, Environmental Law Institute, Washington, DC All rights reserved. 

Note: To order documents or request additional information, please call (800) 433-5120 or (202) 939-3844. Orders may also be sent by e-mail to orders@eli.org or by fax to (202) 939-3817. Please specify the issue of UPDATE about which you are inquiring. In most instances, for the cost of copying and postage, ELR can supply copies of materials cited. Charges for ELR Subscribers are 25 cents/page, $10 minimum; all others, 50 cents/page, $20 minimum. Documents may also be available free or at a nominal charge from the applicable court or agency. Copyright© 2002, Environmental Law Institute, Washington, DC All rights reserved.

ELR STAFF

J. William Futrell, Publisher
John H. Turner, Editor-in-Chief
Linda L. Johnson, Managing Editor
Rachel Jean-Baptiste, Associate Editor
Michael O'Grady, Associate Editor
Samantha Diesenhouse, Associate Editor
Carolyn Fischer, Editorial Associate
William J. Straub, Desktop Publisher
Jennifer Kissinger, Customer Service
April King, Editorial Assistant