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Weekly Update Volume 32, Issue 11

04/15/2002

LITIGATION

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

CAA, ATTAINMENT STATUS DETERMINATION, COURT ORDER, RULEMAKING:

The D.C. Circuit affirmed a February 2001 district court order requiring EPA to make an air quality attainment status determination for the St. Louis, Missouri, area and to publish it in the Federal Register by March 20, 2001, and affirmed a subsequent court order denying an environmental group's motion to enforce the February 2001 court order through an injunction that would prevent EPA from taking further action on its proposal to postpone St. Louis's nonattainment date and to withdraw its nonattainment determination and resulting classification change. On March 19, 2001, EPA published a notice of its determination for the St. Louis area pursuant to the court order. Shortly thereafter, EPA issued a notice of proposed rulemaking to extend the attainment date until November 15, 2004, and to withdraw the March 19, 2001, reclassification and nonattainment determinations. The environmental group then filed a motion to enforce the February 2001 order, claiming that EPA's rulemakings regarding St. Louis's attainment status and its time limits violated the order. The district court denied the motion and the group appealed. The group also appealed the February 2001 judgment because the court refused to order EPA to make its determination retroactive and it rejected the group's argument that EPA had already made the attainment determination prior to the lawsuit. Both appeals were consolidated. In the February 2001 order, the district court properly rejected the group's claim that EPA had already determined that St. Louis had failed to attain the required ozone standard before this lawsuit began. EPA makes nonattainment determinations and reclassifications simultaneously and only through rulemaking. The district court also properly refused to order EPA to date its attainment determination May 15, 1997, the date the statute envisioned, rather than the actual date of EPA's action, March 19, 2001. The group's proposed solution would likely impose large costs on the states and the district court adhered to the limits of its jurisdiction in denying the requested relief. In addition, the district court did not err in denying the group's motion to enforce the court order. The Agency asked the court to clarify whether its order would prevent EPA from engaging in another rulemaking to postpone the effective date of its court-ordered determination of attainment, and the court ruled that its order did not restrict EPA from engaging in such later rulemakings. Moreover, by the time the motion to enforce was filed, EPA had complied with the court's original directive and performed its nondiscretionary duties. Sierra Club v. Whitman, Nos. 01-5123, -5299 (D.C. Cir. Apr. 5, 2002) (6 pp.).

CAA, NEW YORK AIR POLLUTION MITIGATION LAW, PREEMPTION, COMMERCE CLAUSE:

A district court held that the New York Air Pollution Mitigation Law is preempted by the CAA and violates the Commerce Clause. Under Air Pollution Mitigation Law §66-k, an electric generator is assessed an offset penalty when it sells a sulfur dioxide (SO2) allowance to a generator in an upwind state. The offset imposed by §66-k is equal to any sum received for the sale of the SO2 allowance, but does not apply if the generator attaches a restrictive covenant to the allowance that prevents its subsequent sale to an upwind state. Allowances with restrictive covenants sell for less than an unencumbered allowance. However, the CAA preempts the §66-k offset penalty. The §66-k restrictions on transferring allowances are contrary to the CAA Title IV provision that allows the transfer of SO2 allowances among any covered electric generating units. Moreover, Congress and EPA both rejected geographic limitations, such as §66-k, on the transfer of SO2 allowances. Further, the §66-k restrictions on transferring allowances result in decreased availability of SO2 allowances, which would allow New York to indirectly regulate SO2 emissions in other states. In addition, the §66-k restrictions violate the Commerce Clause by discriminating against articles in commerce and by restricting the transfer of SO2 allowances to upwind states. The law imposes upon in-state units the entire cost of compliance, either by forfeiture of receipts from unrestricted transfers or by reduced value of restricted SO2 allowances. The law also does not restrict or penalize the transfer of SO2 allowances within the state. Thus, the law is protectionist because it gives a preferred right of access to SO2 allowances to instate units over units in upwind states. Additionally, there is no direct connection between the requirements of the Air Pollution Mitigation Law and the purported, legitimate state concerns of reducing acid deposition and protecting public health and the environment. Consequently, the Air Pollution Mitigation Law is null and void and its enforcement is enjoined. Clean Air Markets Group v. Pataki, No. 00-CV-1738 (N.D.N.Y. Apr. 9, 2002) (Hurd, J.) (25 pp.).

CAA, OPERATING PERMIT:

The Ninth Circuit held that EPA did not err when it refused to object to a county health district's issuance of a CAA operating permit to a business. Although the individual challenging EPA's action correctly argued that the permit had to be approved according to the existing rules adopted under CAA part 70 rather than under the proposed new rules under Part 70, the permit based on the new rules imposed more stringent conditions on the business than the old ones would have. Thus, meeting the former entailed meeting the latter. Additionally, the individual incorrectly argued that the permit has to impose on the business a requirement of post-construction monitoring and a requirement of submission of a compliance schedule. Further, while the individual is correct that the business must use the best available control technology (BACT) to ensure that air quality does not deteriorate, that does not mean that the business must use the most sophisticated technology that can be found without regard to other factors. BACT is not some ideal, invariable standard of excellence; it is something to be decided by the issuing authority on a case-by-case basis. Here the health district determined that the business' permit would meet the BACT standard under the circumstances. Moreover, EPA adequately addressed the individual's concerns regarding the carbon monoxide motor vehicles emissions budget for Las Vegas, Nevada. Hall v. United States Environmental Protection Agency, Nos. 00-70257, -71676 (9th Cir. Mar. 28, 2002) (3 pp.).

CERCLA, EXPERT TESTIMONY, AFFIDAVITS:

The Seventh Circuit affirmed a district court's disqualification of an expert witness and dismissal of a company's third-party CERCLA complaint against a manufacturer for the reimbursement of cleanup costs stemming from groundwater contamination. At his deposition, the company's expert witness admitted that he was not an expert in mathematical models of groundwater flow and that the modeling on which he relied for his conclusion that the manufacturer's plant was within the capture zone for the contamination was done by the expert's assistants. After the manufacturer moved that the expert be barred from testifying, the company responded with affidavits from the assistants. The district court properly struck the affidavits under Fed. R. Civ. P. 37(c)(1) on the ground that the company's disclosure of additional expert witnesses was untimely. The district judge was reasonable in regarding the affidavits as expert reports. An expert witness is permitted to use assistants in formulating his expert opinion, and normally they need not themselves testify. Here, however, the assistants exercised professional judgment that was beyond the expert's ken. Although the expert could have testified that if the manufacturer's plant was within the capture zone some of the contamination may have come from that plant, the expert could not testify that the plant was within the capture zone. A scientist, however well credentialed he may be, is not permitted to be the mouthpiece of a scientist in a different specialty. Further, it is apparent from the affidavits that the expert's assistants did not merely collect data for him or otherwise perform routine procedures, and that the expert himself lacks the necessary expertise to determine whether the techniques were appropriately chosen and applied. Moreover, the district court was correct in finding that the filing of the expert reports was untimely. There was no justification for not disclosing to the manufacturer the opinions of the assistants. The company should have known that the expert's expertise did not extend to scientific issues crucial to the prima facie case and was likely to be contested, and the suit was in its seventh year when the judge acted. To have reopened discovery to give the manufacturer its crack at the additional experts would have unreasonably extended the litigation and burdened the manufacturer. Because the affidavits were properly struck, the expert witness could not testify. And without the expert's testimony, the company had no case. The district court, therefore, properly granted summary judgment for the manufacturer. Dura Automotive Systems of Indiana, Inc. v. CTS Corp., No. 01-1081 (7th Cir. Apr. 4, 2002) (19 pp.).

CERCLA, RESPONSE COSTS, DIVISIBILITY:

A district court held that a company was jointly and severally liable for costs incurred by the United States at the Friedrichsohn's Cooperage, Inc. site, in Waterford, New York. The company, which was previously found liable as an arranger under CERCLA, argued that its liability should be limited by the common law doctrine of divisibility and apportionment so that it is only responsible for that part of the United States' response costs equal to its relative "volumetric contribution" of barrels to the site. The company, however, failed to meet its burden of proof with respect to its divisibility defense. Although in some instances, volume might constitute a reasonable basis for apportionment, this is not such a case. There is no dispute that the present case involves the presence of a single harm in which the chemicals contained in the company's barrels became commingled with the chemicals contained in the barrels of others who shipped barrels to the site. Thus, despite the company's arguments to the contrary, the relative toxicity, migratory potential, degree of migration, and "synergistic capacities" of the hazardous substances deposited at the site are important to the determination of whether the harm is divisible. Moreover, the company presented no evidence about these factors. Accordingly, the court granted the United States' motion for partial summary judgment as to the company's liability and found the company jointly and severally liable for $2,020,238.19 in U.S. response and enforcement costs. United States v. Agway, Inc., No. 1:99-CV-708 (N.D.N.Y. Mar. 28, 2002) (Scullin, J.) (8 pp.).

CERCLA, CONTRIBUTION, SUCCESSOR LIABILITY:

A district court held a parent company liable for contribution under CERCLA as a successor corporation to a chemical company that owned and operated an industrial facility in Ohio from 1926 until 1946. The current owner of the facility argued that the chemical company is liable under CERCLA for a portion of the environmental cleanup costs that can be attributed to waste that was dumped between 1926 and 1946. Because the parent company failed to come forward with any evidence rebutting the current owner's prima facie case for contribution, the court granted this portion of the current owner's motion for summary judgment. In addition, the parent company is derivatively liable for the CERCLA liability of the chemical company. The chemical company, except for its stock, was sold to the current owner's predecessor. The chemical company's stock was then sold to the parent company, and the parent company liquidated the chemical company's stock while acquiring its assets and dissolving it as a corporate entity. Under Ohio law, the purchaser of a corporation's assets is not liable for the debts and obligations of the seller corporation. However, a successor corporation may be held responsible for the liabilities of the predecessor corporation when: (1) the buyer expressly or impliedly agrees to assume such liability; (2) the transaction amounts to a de facto consolidation or merger; (3) the buyer corporation is merely a continuation of the seller corporation; or (4) the transaction is entered into fraudulently for the purpose of escaping liability. Here, the parent company could not invoke the "mere continuation" exception to successor nonliablity because when the chemical was sold to the current owner's predecessor, the transaction did not result in the same people owning both corporations, and after the transaction, the previous owner of the chemical company continued to exist as a viable corporation. In addition, although the parent company did not expressly assume all of the liabilities of the chemical company, the parent company's act of liquidating the chemical company's stock, while contemporaneously acquiring its assets and subsequently dissolving it as a corporate entity, was a de facto merger under Ohio law. The parent company, therefore, is liable as a successor corporation. Cytech Industries, Inc. v. B.F. Goodrich Co., No. C2-00-1398 (S.D. Ohio Apr. 5, 2002) (Graham, J.) (14 pp.).

CERCLA, CONTRIBUTION, TRUST AGREEMENTS:

A district court held that a trustee, on behalf of a trust created for the cleanup of a contaminated industrial site, may seek contribution from other PRPs. The PRPs, who are grantors to the trust, argued that the trust has not incurred response costs as required by CERCLA because the grantors fund the trust pursuant to the trust agreement. However, the trust, and not the individual grantors to the trust, have incurred costs in carrying out cleanup of the site as evidenced by checks payable to environmental consultants, contractors, and the state environmental agency. Moreover, plaintiff associations, such a trusts, are permitted under CERCLA to sue for contribution despite the fact that they are creatures of contract. Additionally, because the trust undertook the liability for the cleanup of the site, it is undeniably a PRP and, therefore, can seek contribution. Further, the trust is a real party in interest. The PRPs' fear that the trustee could individually bring the same claims asserted in the complaint is unfounded. The trustee's contribution action will bind the PRPs because it is brought on their behalf. Karras v. Teledyne Industries, Inc., No. 99CV0996BTMJAH (S.D. Cal. Mar. 25, 2002) (Moskowitz, J.) (10 pp.).

SOLID WASTE DISPOSAL ACT (SWDA), WHISTLEBLOWER PROTECTION, SOVEREIGN IMMUNITY:

The First Circuit affirmed a district court decision enjoining federal administrative proceedings on the grounds that the proceedings infringed upon a state's constitutionally protected sovereign interests. Three individuals filed administrative complaints against Rhode Island's environmental agency alleging that the agency retaliated against them in violation of a whistleblower protection provision in the SWDA for reporting what the individuals believed to be improper implementation of the SWDA. The state and the agency brought suit to enjoin the administrative proceedings based on sovereign immunity. Although there was no final agency action in the administrative proceedings when the state brought this case, the issue here is not one involving ripeness of final agency action under the APA, but whether the court should recognize an implied cause of action that allows the state to seek direct enforcement of its constitutional rights under the doctrine of sovereign immunity, notwithstanding the formal hearing and review provisions of the APA. Such a cause of action exists. Additionally, the Eleventh Amendment does not bar the application of sovereign immunity principles to administrative adjudications. Proceedings in the administrative law judge phase are not mere investigatory actions; they partake sufficiently of a judicial proceeding initiated and prosecuted by a private party to trigger the state's sovereign immunity. Further, a provision in the state's charter from the time the U.S. Constitution was ratified allowing the state to sue or be sued in court does not waive the state's sovereign immunity. The U.S. Supreme Court has held that such provisions are insufficient to waive the state's immunity from suit in a federal forum and the highest court of the state has long recognized that, absent statutory abrogation, Rhode Island adheres strictly to the doctrine of sovereign immunity. Moreover, there is no statutory waiver of sovereign immunity in the SWDA. The state, therefore, demonstrated a likelihood of success on the merits of its sovereign immunity claim. Because all other factors required for a preliminary injunction were also present, the district court properly enjoined the federal administrative proceedings. Rhode Island Department of Environmental Management v. United States, Nos. 00-2326, 01-1543 (1st Cir. Apr. 8, 2002) (40 pp.).

ASBESTOS, CIVIL RIGHTS ACT, WORKERS COMPENSATION, INTENTIONAL TORTS:

The Sixth Circuit affirmed a district court decision granting summary judgment to a school system and various school officials sued by custodians who were exposed to friable asbestos during a carpet removal job at a high school. The custodians alleged that the officials, in ordering them to remove the asbestos-containing materials, caused injury to the custodians that was willful, wanton, and malicious. Although the custodians alleged a willful violation, their proof is insufficient as a matter of law to state a question of fact regarding the officials' liability under 42 U.S.C. §1983. There was no evidence in the record suggesting that any of the officials made a deliberate decision to inflict pain or bodily injury on any of the custodians. Nor was there proof that the officials engaged in arbitrary conduct intentionally designed to punish the custodians that would result in the deprivation of a constitutionally protected interest. The custodians' evidence establishes, at best, a case sounding in negligence and not a constitutional tort under §1983. Similarly, the district court did not err when it concluded that the custodians' evidence did not sufficiently establish a material issue of fact with regard to the officials' liability under the intentional tort exception to the Michigan Worker's Disability Compensation Act (MWDCA). The intentional tort exception provides: "An intentional tort shall exist only when an employee is injured as a result of a deliberate act of the employer and the employer specifically intended an injury." While the officials' actions may have been negligent, or even grossly negligent, the custodians' proof fails to establish that the officials had actual knowledge that injury was certain to occur and willfully disregarded that knowledge. The custodians, therefore, are subject to the exclusive remedies provided under the MWDCA and may not recover in this action. Upsher v. Grosse Pointe Public School System, Nos. 00-1763 et al. (6th Cir. Apr. 4, 2002) (8 pp.).

NEPA, LAND LEASE, INJUNCTION, STANDING:

The Eighth Circuit vacated a district court order granting a permanent injunction restraining the government and environmental groups from interfering with the construction or operation of a multi-site hog production facility on tribal trust land. In 1998, a Native American tribe and a company agreed to negotiate a land lease for the development of the facility. Based on the EA for the project, the Bureau of Indian Affairs (BIA) issued a FONSI and authorized the tribe to sign the lease. After several environmental groups sued the federal government seeking to suspend or enjoin BIA's approval of the lease, the BIA, in January 1999, sent a letter to the tribe voiding the lease because the FONSI did not comply with NEPA. The tribe and company filed suit and were granted a permanent injunction. The government and environmental groups appealed, arguing that the company lacked standing, and the tribe reversed its position and realigned itself with the appellants. Although the company satisfied the constitutionally mandated elements of standing, the interests the company seeks to protect do not fall within the zone of interests intended to be protected by the statutes in question. The company relies on three statutes--25 U.S.C. §§1(a), 18, and 415--involving the relationship between Native American tribes and the U.S. government. However, the three statutes were enacted to protect Native American interests, and it would be inconsistent to interpret them as giving legally enforceable rights to non-tribal or non-governmental parties whose interests conflict with the tribe's interests. Similarly, the company lacks standing under NEPA because the interests it seeks to protect are solely economic. Likewise, the company failed to show how its economic interests fall within the zone of interests protected by the National Historic Preservation Act. In addition, the company's allegation of procedural injury does not satisfy the requirements of prudential standing. Consequently, the district court's order granting a permanent injunction was vacated. Rosebud Sioux Tribe v. Sun Prairie, Nos. 00-2468, -2471 (8th Cir. Apr. 5, 2002) (13 pp.).

NEPA, STANDING, AIRPORTS & AIRWAYS IMPROVEMENT ACT (AAIA):

The D.C. Circuit held that a town lacked prudential standing to pursue its claims that the FAA's EIS for the renovation of an airport was inadequate under NEPA and that its remaining AAIA claims are without merit. The town meets the requirements for Article II standing because its developmental prospects are clearly impaired. However, it lacks prudential standing to pursue its NEPA claims against the FAA because it failed to connect its claimed economic injury to any environmental effects caused by the allegedly defective EIS. In addition, the town's claims that the FAA violated the AAIA are without merit. The permitting process will insure that the renovation will be consistent with local planning, and the town has been involved in the decisionmaking process. In addition, the town argued that the FAA failed to obtain a certification from the state's governor that the project will meet applicable air and water quality standards. The AAIA's certification requirement, however, only applies to the location of a new runway or a major expansion of an existing runway, and the renovation plan does not contemplate either. Town of Stratford, Connecticut v. Federal Aviation Administration, No. 99-1507 (D.C. Cir. Apr. 9, 2002) (7 pp.).

FREEDOM OF INFORMATION ACT (FOIA), ATTORNEY-CLIENT PRIVILEGE, WORK PRODUCT:

The First Circuit affirmed in part and vacated in part a district court order requiring the DOI to disclose to Maine certain documents relating to efforts to list Atlantic salmon in eight rivers in Maine as endangered. Although the district court allowed the DOI to withhold many documents, it ordered the agency to disclose 197 documents, finding them not exempt under either the attorney-client or work product privileges, and the DOI appealed. The district court, however, did not err in requiring the DOI to demonstrate that the withheld documents were created primarily for litigation purposes in order to claim the work product privilege under FOIA. Nor did the district court err in finding that the DOI failed sufficiently to disclose that the documents at issue were prepared in anticipation of litigation and to identify the litigation for which the alleged work product documents were prepared. The DOI failed to meet its burden of making the correlation between each withheld document and the litigation for which the document was created. In addition, the district court did not err in finding certain documents unprotected by the attorney-client privilege. The DOI failed to explain how the documents claimed to be protected relate to a confidential client communication. In addition, the district court did not act prematurely in granting Maine's motion for summary judgment. However, a portion of the district court's order that held that FOIA does not exempt from disclosure otherwise privileged factual material in an attorney's work product was vacated. Maine withdrew its request for the 19 documents that the district court ordered disclosed based on this holding. Maine v. United States Department of the Interior, No. 01-1234 (1st Cir. Apr. 5, 2002) (27 pp.).

FALSE CLAIMS ACT (FCA), HEARSAY, ATTORNEYS FEES:

The Ninth Circuit affirmed a district court's grant of summary judgment in favor of a transit authority that was sued in a qui tam action under the FCA by an employee of one of its subcontractor, but vacated the court's award of attorney fees to be paid by the employee's attorney. The employee alleged that the transit authority failed to disclose to the United States that a federally funded UST project suffered from a serious design defect in its leak detection system. The district court properly granted summary judgment in favor of the transit authority. The employee failed to show that statements made by a project supervisor admitting the authority's failure to disclose were admissible under the statement against interest exception to the hearsay rule. The statement against interest exception requires that the declarant be unavailable, and the employee made no showing as to why the supervisor was unavailable. Moreover, the employee's observations alone were insufficient to show a violation of the FCA. The district court, however, erred in ordering the employee's attorney to pay the transit authority's attorneys fees. The FCA does not authorize an award of attorneys fees against another attorney. In addition, the award of attorneys fees under the FCA is reserved for rare and special circumstances. On remand, the district court must reconsider whether attorneys fees are warranted. Pfingston v. Ronan Engineering Co., Nos. 00-56721, -57166 (9th Cir. Mar. 19, 2002) (14 pp.).

NATURAL GAS, RATE CEILINGS, RIGHT OF FIRST REFUSAL, PRE-ARRANGED RELEASES:

The D.C. Circuit upheld in part, reversed in part, and vacated in part various FERC orders that extended its prior efforts to increase flexibility and competition in the natural gas industry. FERC did not err in deciding to lift for a two-year period the cost-based rate ceilings that it previously imposed on short-term releases of pipeline capacity by shippers with long-term rights to that capacity. Similarly, FERC did not err in retaining the rate ceilings for similar sales by the pipelines themselves. In addition, FERC did not err by codifying a requirement that pipelines permit a shipper to make use of the firm capacity for which it has contracted by segmenting that capacity into separate parts for its own use or for the purpose of releasing that capacity to replacement shippers to the extent that such segmentation is operationally feasible. The court also upheld an order that restricted pipelines' ability to assess penalties. In addition, FERC's continuation of the discount adjustment policy and its failure to enact a new one was not erroneous. The court also upheld the majority of a FERC order in which it made changes to its "right of first refusal" rules. The court, however, vacated and remanded the five-year cap on the mandatory right of first refusal. FERC failed to demonstrate why it thought that five years was the appropriate time limit. The court also remanded a portion of the order that concerns the relationship between the right of first refusal and tariff provisions. In addition, FERC did not err in failing to provide a blanket exemption for prearranged deals that allows capacity rights to be released to a specific, pre-selected short-term shipper without prior posting and bidding. However, in creating a waiver procedure for the posting and bidding rules, FERC failed to support its rule conditioning any waiver on the applicant's being prepared to have all of its capacity release transactions limited to the applicable maximum rate. In addition, FERC's clarification of a prior policy for situations where releasing and replacement shippers, in a combination of forwardhaul and backhaul, make deliveries to a single point in an amount greater than the shipper's contracted-for capacity at the delivery point, was remanded for further review. And petitions concerning the segmentation of reticulated pipelines and point discounts, secondary point capacity allocation, and peak/off-peak rates were dismissed as unripe or for want of standing. Interstate Natural Gas Ass'n of America v. Federal Energy Regulatory Commission, No. 98-1333 (D.C. Cir. Apr. 5, 2002) (40 pp.).

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

THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register.

AIR:

  • EPA established NESHAPs for certain types of sources at petroleum refineries: catalytic cracking units, catalytic reforming units, sulfur recovery units, and associated bypass lines. 67 FR 17761 (4/11/02).

  • EPA promulgated the NESHAP for new and existing sources at wet-formed fiberglass mat production facilities. 67 FR 17823 (4/11/02).
  • EPA proposed amendments to the NESHAP for Pesticide Active Ingredient Protection to address issues raised by petitioners and to correct inconsistencies that have been discovered since the rule was originally promulgated on June 23, 1999. 67 FR 17491 (4/10/02).

  • EPA proposed to approve Puerto Rico's CAA §111(d) plan that establishes emission limits for existing municipal solid waste landfills and provides for the implementation and enforcement of those limits. 67 FR 17321 (4/10/02).

  • EPA approved the CAA §§111(d)/129 negative declarations submitted by Rhode Island certifying that there are no existing commercial and industrial solid waste incinerators or small municipal waste combustors located within the state's boundaries. 67 FR 17944 (4/12/02).
  • EPA approved the maintenance plan for the Steptoe Valley Central area in Nevada and granted the state's request to redesignate this area from nonattainment to attainment for the sulfur dioxide NAAQS. 67 FR 17939 (4/12/02).
  • EPA proposed to update a portion of the outer continental shelf (OCS) air regulations that pertain to the OCS sources for which the Santa Barbara County air pollution control district, South Coast air quality management district, and Ventura County air pollution control district are the designated corresponding onshore areas. 67 FR 17955 (4/12/02).

HAZARDOUS WASTES & SUBSTANCES:

  • EPA approved revisions made to the state of Washington's hazardous waste program. 67 FR 17636 (4/11/02).

WATER QUALITY:

  • EPA proposed to implement CWA §316(b) for certain existing power producing facilities that use a cooling water intake structure and that withdraw 50 million gallons or more of water per day from rivers, streams, lakes, reservoirs, estuaries, or other U.S. waters for cooling purposes. The proposed rule would establish national location, design, construction, and capacity requirements that reflect the best technology available for minimizing adverse environmental impact from the cooling water intake structure based on water body type and the amount of water withdrawn by a facility. 67 FR 17121, 17171, 17221 (4/9/02).

DOJ NOTICES OF SETTLEMENTS:

  • United States v. Great Western Inorganics, Inc., No. 02-N-0604 (D. Colo. Mar. 26, 2002). A settling CERCLA defendant must pay $220,000 in past EPA response costs incurred at the defendant's chemical manufacturing facility located in the Rocky Flats Industrial Park site in Jefferson County, Colorado, must perform work at the facility valued at $333,000 to enhance and maintain EPA's response actions, and must enter into an environmental covenant designed to ensure the continued protectiveness of those response actions. 67 FR 16759 (4/8/02).
  • United States v. T.H. Agriculture & Nutrition, L.L.C., No. 1:02-CV-38-2 (M.D. Ga. Mar. 14, 2002). A settling CERCLA defendant must implement the EPA-selected remedy for Operable Unit Number 1 of the T.H. Agriculture and Nutrition Superfund site in Albany, Georgia. 67 FR 16759 (4/8/02).
  • United States v. Aliff, No. 1:02-0279 (S.D. W. Va. Mar. 26, 2002). A settling CERCLA defendant, on behalf of a decedent's estate, must pay EPA $30,380 in connection with cleanup costs incurred at the Route 52 site located in Bluefield, West Virginia; must sell and/or transfer the portion of the site and pay EPA from the proceeds of the sale/transfer; and must assign and transfer 60% of the estate's Federal Deposit Insurance Corporation claim to EPA. 67 FR 17719 (4/11/02).
  • United States v. A-L Processors, No. C-3-91-309 (S.D. Ohio Mar. 12, 2002). Settling CERCLA defendants must pay $93,595 in past U.S. response costs incurred at the United Scrap Lead Superfund site in Troy, Ohio, and must pay $64,247 in response costs incurred by a respondent group under an earlier consent decree. 67 FR 17718 (4/11/02).
  • United States v. Caulk, No. 02-D-0625 (D. Colo. Mar. 28, 2002). Settling CERCLA defendants must pay $95,000 in U.S. response costs incurred at the RAMP Industries site in Denver, Colorado. 67 FR 17720 (4/11/02).
  • United States v. Kuroshima Shipping, S.A., No. A02-0057 (JKS). Settling Oil Pollution Act defendants that own and operate a vessel that grounded and subsequently discharged oil in the area of Summer Bay, Unalaska Island, Alaska, must pay $644,017 to the natural resource trustees for their implementation of a restoration plan, must place another $9,000 into a registry until the trustees determine whether that amount is necessary for the field component of the restoration plan, and must pay $66,158.90 to the trustees for their damage assessment costs. 67 FR 17720 (4/11/02).
  • United States v. Premcor Refining Group, Inc., No. 98-C-5618 (N.D. Ill. Apr. 1, 2002). Settling CAA, CERCLA, CWA, EPCRA, and RCRA defendants that operate a refinery in Blue Island, Illinois, must pay a $6,250,000 civil penalty to be evenly split between the United States and the state of Illinois.67 FR 17720 (4/11/02).
  • United States v. Texaco Exploration & Production, Inc., No. 2:98-CV-00213-ST (D. Utah Mar. 26, 2002). A settling CWA defendant that allowed unauthorized discharges of produced water and mixed oil at its oil and gas production field in Aneth, Utah, failed to prepare an adequate Spill Prevention Control and Countermeasure Plan (SPCCP), and failed to notify EPA about the discharges must implement a variety of injunctive relief; must submit and comply with a revised SPCCP; must construct and implement two supplemental environmental projects, at an estimated cost of $478,700, to provide an adequate supply of drinking water and sanitary facilities for residents in the vicinity of Montezuma Creek, Utah, on the Navajo Nation; and must pay a $369,922 civil penalty. 67 FR 17721 (4/11/02).

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

THE CONGRESS

COMMITTEE ACTION

  • H.R. 2109 (Virginia Key Beach) was reported by the House Committee on Resources. H. Rep. No. 107-390, 148 Cong. Rec. H1152 (daily ed. Apr. 9, 2002). The bill would authorize the Secretary of the Interior to conduct a special resource study of Virginia Key Beach, Florida, for possible inclusion in the National Park System.
  • H.R. 2628 (Muscle Shoals National Heritage Area) was reported by the House Committee on Resources. H. Rep. No. 107-398, 148 Cong. Rec. H1281 (daily ed. Apr. 11, 2002). The bill would direct the Secretary of the Interior to conduct a study of the suitability and feasibility of establishing the Muscle Shoals National Heritage Area in Alabama.
  • H.R. 2937 (land conveyance) was reported by the House Committee on Resources. H. Rep. No. 107-387, 148 Cong. Rec. H1151 (daily ed. Apr. 9, 2002). The bill would provide for the conveyance of certain public land in Clark County, Nevada, for use as a shooting range; with an amendment.
  • H.R. 3480 (Mississippi River) was reported by the House Committee on Resources. H. Rep. No. 107-388, 148 Cong. Rec. H1151 (daily ed. Apr. 9, 2002). The bill would promote DOI efforts to provide a scientific basis for the management of sediment and nutrient loss in the Upper Mississippi River Basin.
  • H.R. 3853 (national parks and public lands) was reported by the House Committee on Resources. H. Rep. No. 107-389, 148 Cong. Rec. H1152 (daily ed. Apr. 9, 2002). The bill would make technical corrections to laws passed by the 106th Congress related to parks and public lands.
  • H.R. 3909 (Gunn McKay Nature Preserve) was reported by the House Committee on Resources. H. Rep. No. 107-392, 148 Cong. Rec. H1152 (daily ed. Apr. 9, 2002). The bill would designate certain federal lands in Utah as the Gunn McKay Nature Preserve.
  • H.R. 3958 (Bear River Migratory Bird Refuge) was reported by the House Committee on Resources. H. Rep. No. 107-386, 148 Cong. Rec. H1151 (daily ed. Apr. 9, 2002). The bill would provide a mechanism for the settlement of claims of the state of Utah regarding portions of the Bear River Migratory Bird Refuge located on the shore of the Great Salt Lake, Utah.

BILLS INTRODUCED

  • S. 2107 (Roberts, R-Kan.) (land conveyance) would require the conveyance of the Sunflower Army Ammunition Plant, Kansas. 148 Cong. Rec. S2577 (daily ed. Apr. 11, 2002). The bill was referred to the Committee on Armed Services.
  • S. 2118 (Jeffords, I-Vt.) (persistent organic pollutants) would amend TSCA and FIFRA to implement the Stockholm Convention on Persistent Organic Pollutants and the Protocol on Persistent Organic Pollutants to the Convention on Long-Range Transboundary Air Pollution. 148 Cong. Rec. S2578 (daily ed. Apr. 11, 2002). The bill was referred to the Committee on Environment and Public Works.
  • H.R. 4103 (Hanse, R-Utah) (land transfer) would direct the Secretary of the Interior to transfer certain public lands in Natrona County, Wyoming, to the Corporation of the Presiding Bishop. 148 Cong. Rec. H1153 (daily ed. Apr. 9, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4111 (McInnis, R-Colo.) (national trails) would amend the National Trails System Act to designate the Old Spanish Trail as a National Historic Trail. 148 Cong. Rec. H1153 (daily ed. Apr. 9, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4129 (Cannon, R-Utah) (water resources) would amend the Central Utah Project Completion Act to clarify the responsibilities of the Secretary of the Interior with respect to the Central Utah Project, would redirect unexpended budget authority for the Central Utah Project for wastewater treatment and reuse and other purposes, would provide for prepayment of repayment contracts for municipal and industrial water delivery facilities, and would eliminate a deadline for such prepayment. 148 Cong. Rec. H1199 (daily ed. Apr. 10, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4141 (Gibbons, R-Nev.) (Land exchange) would authorize the acquisition by exchange of lands for inclusion in the Red Rock Canyon National Conservation Area, Clark County, Nevada. 148 Cong. Rec. H1199 (daily ed. Apr. 10, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4160 (Shimkus, R-Ill.) (biodiesel fuel; energy credits) would eliminate certain restrictions on the availability of credits under title III of the Energy Policy Act of 1992 for the use of biodiesel fuel. 148 Cong. Rec. H1200 (daily ed. Apr. 10, 2002). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 4212 (Sherman, D-Cal.) (fossil fuel usage) would direct the Secretary of Energy to conduct a study of the effects of year-round daylight saving time on fossil fuel usage. 148 Cong. Rec. H1283 (daily ed. Apr. 9, 2002). The bill was referred to the Committee on Energy and Commerce.
  • H. Res. 379 (Gekas, R-Pa.) (oil) would provide that certain actions should be taken with respect to the actions of OPEC and other oil-exporting countries, and with respect to decreasing the dependency of the United States on foreign sources of oil. 148 Cong. Rec. H1153 (daily ed. Apr. 9, 2002). The bill was referred to the Committees on International Relations, and Energy and Commerce.

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

IN THE STATES

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

INTERNATIONAL

GENERAL

  • The third preparatory meeting for the World Summit on Sustainable Development (WSSD) (prepcom 3) ended in controversy and without consensus. Two of the three working groups did not finish their work before the expiration of the meeting and will need to regroup in advance of the next preparatory meeting, which is scheduled for May 24 in Bali. Some NGO groups said that the lack of progress was attributable to the United States, Canada, Japan, Australia, and the Organization of Petroleum Exporting Countries (OPEC) members of the G-77 group of developing states. See, e.g., http://www.foei.org/media/2002/0405.html. ("The U.S. and its allies blocked meaningful targets and timetables being inserted into the negotiating text for the Summit, which [Friends of the Earth International] believes must set clear social and environmental limits to globalization. The United States, Canada, Australia and the OPEC countries must also take most of the blame for two weeks of chaotic negotiations resulting in a long document, strong on platitudes but weak on substance. The EU and the majority of the G77 developing countries meanwhile failed to show the necessary leadership in the face of U.S. obstructions. They failed to offer concrete actions. The EU was unwilling to respond to G77 concerns on finance and trade in the wake of the Monterrey and Doha negotiations on these issues."). For details regarding meeting topics and developments, see http://www.iisd.ca/linkages/2002/pc3/enbots/
  • U.S. Assistant Secretary of State for Oceans and International Environmental and Scientific Affairs John Turner met with South African Environment Affairs and Tourism Minister Mohamed Valli Moosa and others in South Africa to prepare for the WSSD.
  • A Chinese government meteorologist said that the reservoir that will be created by the Three Gorges Dam will be sufficiently large to affect the weather, increasing air temperatures and adversely affecting crops in nearby areas.
  • The sixth meeting of the Conference of the Parties to the Convention on Biological
    Diversity began. The U.N. Environment Programme said the objectives of the two-week meeting were "a stepped-up war against invasive alien species-the number two cause (after habitat destruction) of extinction and biodiversity loss; adoption of the first-ever guidelines giving international companies and organizations access to genetic resources (such as plants for producing new pharmaceuticals) in return for a fair share of the profits and benefits going to the country of origin and local communities; and stronger economic incentives to convince companies and other stakeholders to pursue business opportunities that will help reverse the tide of deforestation." Regarding deforestation, "[t]he bad news is that the signals now being given to individuals and companies makes it cheaper for them to log forests in an unsustainable way than to manage them sustainably. This is one of the primary causes of today's high rates of deforestation and forest degradation," said Klaus Toepfer, Executive Director of the United Nations Environment Programme. "The good news is that governments have it within their power to reshape policy and change economic incentives," he said. "They can start by forcing market prices to include the true value of biodiversity. They should also phase out public subsidies that encourage destructive behavior and publicly-funded projects that destroy habitats."
  • The UN Consultative Process on Ocean Affairs held a session on land-based sources that cause or contribute to marine pollution. See http://www.un.org/News/Press/docs/2002/SEA1732.doc.htm

CLIMATE CHANGE

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

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