Jump to Content

Weekly Update Volume 32, Issue 14

05/13/2002

 LITIGATION

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

CAA, DIESEL ENGINES, DIESEL FUEL:

The DC Circuit denied petitioners' challenges to an EPA rule requiring drastic reductions in exhaust emissions from diesel trucks and buses beginning in 2007 and requiring the maximum sulfur content of diesel fuel to be reduced from 500 parts per million (ppm) to 15 ppm beginning in 2006. The court rejected claims that engine manufacturers will be unable to develop emissions-control systems satisfying the new rule. EPA predicts that two relatively new technologies will aid in achieving the 2007 reductions: the catalyzed diesel particulate filter and the nitrogen oxide (NOx) adsorber. EPA was not obliged to provide detailed solutions to every engineering problem, but had only to identify the major steps for improvement and give plausible reasons for its belief that the industry will be able to solve those problems in the time remaining. And since EPA is authorized to adopt technology-forcing regulations, a petitioner's evidence that current technology is inadequate is not enough to show that EPA was arbitrary in predicting future success. Petitioners also unsuccessfully challenged the feasibility of a portion of the rule that eliminated a preexisting exemption for emissions from engine crankcases. The requisite filtration systems are already required in Europe and have been used on a manufacturer's heavy-duty diesel engine in the United States since 1999. Similarly, the court rejected claims that the 15 PPM sulfur requirement is arbitrary, capricious, and contrary to law. EPA's determination that NOx adsorption technology is viable and necessary justifies the 15 PPM sulfur diesel fuel standard. EPA has evidence that application of this technology is feasible, appears to have set forth an engineering path rather than mere optimism, and has given a reasoned explanation why it believes this path can be followed. The court also rejected claims that the 15 PPM sulfur requirement would result in supply shortfalls of diesel fuel. Moreover, EPA's decision to phase-in ultra-low sulfur diesel does not undermine the fuel standard, its selection of the primary test method was not arbitrary and capricious, and it complied with the Regulatory Flexibility Act. The court also upheld changes the rule made to the Averaging, Banking, and Trading program, which allows engine manufacturers who produce engines cleaner than those required by the regulations to generate "credits" that they may then use to offset higher emitting engines, save for future use, or sell to other manufacturers. Other challenges were dismissed either because they were time-barred, the petitioners lacked standing, or the claims were unripe. National Petrochemical & Refiners Ass'n v. Environmental Protection Agency, No. 01-1052 (DC Cir. May 3, 2002) (21 pp.).

CWA, MOUNTAINTOP MINING, AGENCY AUTHORITY:

A district court held that CWA §404 does not allow the filling of US waters solely for waste disposal, and, therefore, enjoined the US Army Corps of Engineers from issuing any further permits allowing the valley fill of overburden waste from mountaintop removal. Although the Corps, with EPA's approval, has permitted surface coal mining operations to dispose of overburden waste from mountaintop removal coal mining by filling streams for two decades, it has been acting beyond its authority and in violation of the CWA. The Corps' regulations governing the §404 dredge and fill program comport with the statutory, regulatory, and legislative history of the CWA, stating that fill is material discharged into water for construction, development, or property protection, activities defined by their ultimate use and purpose. Similarly, longstanding EPA definitions of "fill material" and "discharge," while not identical to the Corps' definitions, point to the same use and purpose requirement. However, the EPA definition of "fill material" that allows that fill discharges might be for any purpose introduces an ambiguity present nowhere else in the statutory or regulatory scheme. The Corps and EPA argued that §404 permits have been issued for valley fills designed for waste disposal for decades under the EPA definition of "fill," and that the court should defer to the Agency's longstanding regulatory practice. EPA's definition, however, is ambiguous because it might be understood to apply to the use or purpose of the discharge, not of the fill, and, thus is inconsistent with the statute. It also conflicts with EPA's own definition of "discharge of fill material," which involves constructive, purposeful, and useful fills, not fills constructed solely for waste disposal. Accordingly, the reading of the ambiguous EPA definition of fill material that would allow discharges for any purpose is necessarily incorrect. An illegal agency practice has no precedential value and is due no deference. Thus, the fact that the Corps approved §404 permits solely for massive waste disposal in the past two decades, with EPA's approval, is not a mitigating factor, much less an argument that the court should approve the practice. Additionally, the agencies' revised definitions of "fill material," promulgated in an effort to legalize the ambiguous EPA definition, are fundamentally inconsistent with the CWA, its history, predecessor statutes, longstanding regulations, and companion statutes. Under the guise of regulatory harmony, the agencies took an ambiguous interpretation, seized the unsupportable horn of the ambiguity, and proposed to make their original error law. Kentuckians for the Commonwealth, Inc. v. Rivenburgh, No. 2:01-0770 (S.D. W. Va. May 8, 2002) (Haden, J.). (46 pp.).

CWA, STATE WATER QUALITY STANDARDS, TOTAL MAXIMUM DAILY LOADS (TMDLs), RIPENESS:

The Eighth Circuit dismissed a soybean association's lawsuit against EPA challenging its approval of Missouri's 1998 CWA §303(d) list of impaired waters. The association argued that the Agency should have disapproved the state's list of pollution-impaired waters because some of the listed waters lacked documentation of pollution. The association, however, failed to present a ripe claim. It did not show that EPA's approval of the list affected the association's members in any concrete way. The association's complaint focuses on potential harm to its members resulting from stricter controls of the use of the challenged waters. More stringent controls on water use, however, will not occur until after TMDLs are developed and implemented. Until objectionable TMDLs are developed and implemented, the association's claims of harm are too remote to be anything other than speculative. Because the suit is not ripe for adjudication, the court dismissed the suit for lack of jurisdiction without prejudice. American Canoe Ass'n v. United States Environmental Protection Agency, No. 01-2905 (8th Cir. May 6, 2002) (6 pp.).

WATER RIGHTS, DECLARATORY JUDGMENT, JURISDICTION:

The Tenth Circuit vacated a district court decision dismissing the United States' suit to quiet title to water rights in a portion of the Rio Grande River. The dispute centers around the Rio Grande Reclamation Project, and after several attempts to dismiss water adjudications in state court, the United States sued to quiet its title to project water in federal court. The district court dismissed the suit under the "abstention" doctrine of Colorado River Water Conservation District v. United States, 424 US 800 (1976). Alternatively, it dismissed the United States' complaint on the ground that it had discretion to dismiss a declaratory judgment action under Brillhart v. Excess Insurance Co. of America, 316 US 491 (1942). The district court did not abuse its discretion when it refused to exercise jurisdiction under Brillhart. The requested federal declaratory relief would not settle the entire controversy over water rights or even clarify the relative rights of the parties to the Rio Grande water. Further, the government may be seeking a declaratory remedy for the purpose of procedural fencing, and federal jurisdiction could cause friction between the federal and state courts. In addition, the state adjudications would provide a more effective remedy to the general controversy than the federal declaratory judgment action. Because the district court properly applied Brillhart, it is unnecessary to determine whether it erred in dismissing the case under Colorado River. The district court, however, did not articulate why it decided to dismiss the action rather than stay it. On remand, the district court must consider whether the preferable remedy is to stay the federal proceedings. United States v. City of Las Cruces, Nos. 00-2451 et al. (10th Cir. May 7, 2002) (16 pp.).

FEDERAL POWER ACT (FPA), NAVIGABILITY:

The DC Circuit denied a hydroelectric facility's petition to review FERC orders determining that the facility is subject to licensing because the Messalonskee Stream on which the facility is located is "navigable" under the FPA. Under FPA §23(b)(1), a non-federal hydroelectric project must be licensed if it is located on a navigable water. FERC's interpretation of navigability under the FPA, which was based on test canoe trips and the stream's physical characteristics in the absence of any commercial or recreational use, was reasonable and entitled to deference. Just because a body of water has not been used for commercial use does not mean that it is not susceptible to commercial use. In the absence of commercial use, FERC may rely on evidence other than recreational use if that evidence is relevant to a finding of navigability. Here, FERC properly relied on both physical characteristics and experimentation to determine whether the stream was suitable for use in commerce. Moreover, FERC did not depart from precedent when it relied on successful test trips taken in canoes, and it did not rely on the test canoe trips alone when finding that the stream was navigable. In addition, the record includes substantial evidence to support FERC's navigability finding. Three witnesses were able to successfully navigate down the stream, and the physical characteristics of the stream support a finding of navigability. FPL Energy Maine Hydro LLC v. Federal Energy Regulatory Commission, No. 99-1397 (DC Cir. May 3, 2002) (8 pp.).

PROPERTY LAW, EASEMENTS, PIPELINES:

The Fifth Circuit affirmed a district court decision holding that a pipeline easement taken by DOE over a property owner's land to access a storage facility in the Strategic Petroleum Reserve (SPR) is not restricted to uses furthering the SPR. The owner sought to enjoin the company that leased the pipeline from DOE from using the pipeline for private profit. Relying on the easement's declaration of taking, the owner argued that any end use of the pipeline must be for SPR purposes. Although the easement's declaration of taking stated that the easement is taken for use in the establishment, management, and maintenance of the SPR, this statement was made merely to state why the government took the easement. It is not intended to limit the permissible scope of the easement's use. In addition, nothing in the Energy Policy and Conservation Act prohibits the company's lease of the pipeline for commercial use, given the statute's express provision that facilities acquired under the Act may be leased, sold, or otherwise disposed of as necessary to implement the government's SPR plan. The district court, therefore, properly granted the government's and company's motions for summary judgment. Canova v. Shell Pipeline Co., No. 01-30385 (5th Cir. May 7, 2002) (7 pp.).

PROPERTY LAW, CONSTITUTIONAL LAW, RELIGIOUS FREEDOM RESTORATION ACT (RFRA):

The Sixth Circuit affirmed a district court decision dismissing on motions for summary judgment a church's §1983 and RFRA claims against a city that arose after the city decided to develop a previously dedicated roadway located between two lots owned by the church. In suing under §1983, the church alleged that the city had violated the Takings Clause of the US Constitution. The church dedicated the roadway to the public and then rededicated the roadway in 1988 to comply with a city ordinance. Further, the roadway was developed for a public purpose. Thus, the city did not take the church's property when it developed the dedicated roadway. The church also argued that the city violated its rights under the Free Exercise and Establishment Clauses by choosing to develop instead of permanently closing the roadway. The Free Exercise Clause, however, does not entitle a religious organization to special benefits. Accordingly, the city's refusal to abandon the dedicated public roadway in favor of the church did not, in and of itself, burden the church's rights under the Free Exercise Clause. Moreover, the church failed to raise a genuine issue of material fact under both Clauses as to whether the city engaged in religious discrimination when it chose to develop rather than close the roadway. In addition, the church did not meet its burden of showing a deprivation of any constitutionally protected liberty or property interest. As a result, the church cannot establish a violation of its substantive or procedural due process rights under §1983. The church also argued that the city violated the RFRA. Because the US Supreme Court held that the RFRA was unconstitutional, the lower court dismissed this complaint. Days prior to the lower court's decision, however, Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). On appeal, therefore, the church argued that the city violated the RLUIPA. Nevertheless, the city's decision regarding the fate of the roadway was not based upon any zoning or landmarking law restricting the development or use of the church's own private property. Accordingly, the RLUIPA is inapplicable to the factual circumstances in the present case, and because the RLUIPA amended the RFRA, the lower court did not err in dismissing the church's RFRA claim. Prater v. City of Burnside, Kentucky, No. 00-6538 (6th Cir. May 7, 2002) (13 pp.).

CONSTITUTIONAL LAW, COMMERCE CLAUSE, VERMONT'S LAND USE AND DEVELOPMENT LAW (ACT 250):

The Second Circuit held that a Vermont Environmental Board Act 250 permit that restricted truck travel through a village does not violate the Commerce Clause or the Supremacy Clause. A company whose goods were transported through the village challenged the board's application of Act 250 arguing that the permit restriction discriminates against interstate commerce and is preempted under the Supremacy Clause. However, the company failed to show that either Act 250 or the permit restriction specifically discriminated facially or in practical effect against interstate commerce or that either imposed differential treatment of in-state and out-of-state economic interests. Act 250 does not have a disparate effect on interstate commerce, and even if it did, the burden imposed on interstate commerce is not excessive in relation to the local benefit of enhancing aesthetics and historic preservation and reducing traffic congestion. Moreover, 49 U.S.C. §14501 does not preempt the permit restriction and, thus, the permit restriction is not invalid under the Supremacy Clause. Although 49 U.S.C. §14501 prohibits states and political subdivisions from enacting regulations having the force or effect of law on truck transportation routes, prices, or service, §14501 is intended to preempt state economic regulation. Act 250 does not speak directly to prices, routes, or services of motor carriers. It is a land use statute, intended to protect Vermont's environmental resources. The permit restriction seeks to achieve non-economic goals that bear no relationship to the regulation of competition. Omya, Inc. v. Vermont, No. 01-7445 (2d Cir. Apr. 25, 2002) (3 pp.).

CERCLA, DELAWARE HAZARDOUS SUBSTANCE CLEANUP ACT (HSCA), CONTRIBUTION, INDEMNIFICATION:

A district court reversed in part and affirmed in part its decision on the CERCLA and HSCA liability of three corporations for costs incurred in connection with an environmental contamination cleanup settlement. The plaintiff corporation, which settled with the US government, brought suit against the other two corporations seeking indemnification and contribution under CERCLA and HSCA. After the court found one corporation liable under CERCLA and HSCA and the other not, the plaintiff corporation sought to amend the court's order as it pertained to the non-liable corporation. Although the allegations against the non-liable corporation were not as numerous and specific as the allegations against the liable corporation, they sufficiently state a claim that the non-liable corporation is a parent corporation acting as a facility “operator” and , thus, subject to operator liability. While the allegations against the non-liable corporation are limited and lack detail, the issue of whether it may be directly liable as a CERCLA operator is fact-intensive and depends on the extent of the corporation's involvement in the pollution and hazardous waste related activities at the site. Therefore, the court reversed its prior decision and let the case proceed against the non-liable corporation. Additionally, the court reversed its decision that the plaintiff corporation's claims for declaratory relief were unripe. The court, in its earlier opinion, had overlooked the plaintiff corporation's allegations that it had spent money on response costs at numerous sites, each of which was polluted by hazardous waste from a subsidiary of the non-liable corporation. Thus, the court will retain as valid the plaintiff corporation's claims seeking declarations of the rights and obligations of the parties. Finally, the court affirmed its decision to dismiss the plaintiff corporation's breach of contract claims against the non-liable corporation. Although a voluntary cleanup agreement the corporations entered into with a state created obligations with the parties and the state, it did not create a binding contractual obligation between the three corporations. BP Amoco Chemical Co. v. Sun Oil Co., No. 00-082-RRM (D. Del. Apr. 30, 2002) (McKelvie, J.) (20 pp.).

CERCLA, CONTRIBUTION, CALIFORNIA HAZARDOUS SUBSTANCE ACCOUNT ACT (HSAA), EVIDENCE:

A district court barred certain CERCLA and state-law contribution claims that two settling PRPs at a California contaminated site brought against a non-settling PRP, but allowed certain other contribution claims against the non-settling PRP to proceed. A company remediated the site and sued all three PRPs in order to recover its response costs. After the company and the settling PRPs reached a settlement, the settling PRPs brought CERCLA and state-law contribution claims against the non-settling PRP. Under CERCLA, a PRP cannot bring a CERCLA §113 contribution claim for its fair share of the response costs of the party that remedied the site. Here, the settling PRPs seek, in part, contribution for their liability to the company that remedied the site. Even if the settling parties settled for more than their fair share of the response costs, they cannot seek a CERCLA §113 claim against the non-settling PRP for the remediating company's response costs. However, the settling PRPs can bring a CERCLA §113 claim against the non-settling party for those response costs it incurred independent of the remediating company's response costs. Further, the settling PRPs can bring a CERCLA §113 claim against the nonsettling PRP for the settling PRPs' liability for non-CERCLA liability, such as that under RCRA and state law. Moreover, although HSAA bars one of the settling party's contribution claims against the nonsettling party for the settling party's fair share of response costs, the settling party can bring HSAA contribution claims for any independent costs it incurred and any costs not incurred under CERCLA or HSAA. Likewise, the settling PRP's other state-law contribution claims are not barred. In addition, the non-settling party cannot subpoena the testimony and work product of the settling parties' experts, but because of a consolidation of actions, the court allows a modification of the trial schedule. FMC Corp. v. Vendo Co., No. CIV.F-00-5295 OWW LJO (E.D. Cal. Apr. 17, 2002) (Wanger, J.) (29 pp.).

CERCLA, PRP, CONTRIBUTION:

A district court held that a corporation that was an independently contracted carrier of various industrial materials and substances was not a PRP under CERCLA for environmental contamination caused by a caustic soda spill. The corporation was never an owner of the contaminated site. Additionally, the corporation never acted as operator of the site. Although the corporation made an effort to obtain control over the facility, the agreement to transfer was never formalized. Further, the corporation never transported caustic soda to the facility. Therefore, the corporation cannot be held liable under CERCLA for contribution of any response costs incurred in relation to the cleanup of the site. Puerto Rico Ports Authority v. PCI International, Inc., No. 96-1969(JAG) (D.P.R. Apr. 24, 2002) (Garcia-Gregory, J.) (7 pp.).

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

The Federal Circuit held that a contractor's recovery of attorneys fees under the EAJA is barred by the US Supreme Court's decision in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 US 598 (2001). The contractor originally was the lowest bidder for a US Department of the Navy project requiring the removal of PCB contamination from water storage tanks at a naval air station in Maryland. The Navy then determined that there were no PCBs to be removed from the tanks. As a result, the contractor was no longer the lowest bidder. The Navy then converted its invitation for bids (IFB) to a request for proposals (RFP), which eliminated the requirements regarding PCBs. The contractor filed suit, asking the court to enjoin the Navy from converting the IFB to a RFP and to direct the Navy to award it the contract. The Navy then canceled the RFP and announced that it would resolict for contractors with a new IFB. The contractor then sought, and was awarded, attorney fees under the EAJA, and the Navy appealed. In Buckhannon, the Supreme Court rejected the use of the "catalyst theory" in construing whether one is a "prevailing party" under federal fee-shifting statutes such as the Fair Housing Amendments Act and the Americans with Disabilities Act. Based on an examination of the text and legislative history of the EAJA, there is no basis for distinguishing the term "prevailing party" in the EAJA from other fee-shifting statutes. Moreover, the Court's holding in Buckhannon leaves no room for a distinction to be drawn between whether a change is brought about by the legislature, as in Buckhannon, or by the government's cancellation of the solicitation in this case. Finally, the contractor does not qualify as a prevailing party under Buckhannon. The lower court, therefore, erred in granting attorneys fees to the contractor. Brickwood Contractors, Inc. v. United States, No. 01-5121 (Fed. Cir. May 3, 2002) (16 pp.).

WATER QUALITY, ALASKA COASTAL MANAGEMENT ACT (ACMA), OFFSHORE DRILLING:

The Alaska Supreme Court reversed and remanded the state's final consistency determination under the ACMA approving the installation and operation of a new offshore exploratory drilling platform in the Cook Inlet. In finding the project consistent with the Alaska Coastal Management Program, the state excluded from its consistency review the platform's proposed discharges of various wastes that were already authorized under a general federal permit. The state had a statutory duty to conduct a project-specific consistency review encompassing all activities for which the project needed a permit. The ACMA's consistency review requirements apply independently of, and in addition to, any requirements that attach to the issuance of a permit authorizing a discrete activity. Here, the permitted discharge activities unquestionably comprised part of the drilling project, thus, a complete consistency review for the project could not be conducted without considering those activities. In addition, the environmental group's action against the state is not barred by the doctrines of collateral estoppel or res judicata. Cook Inlet Keeper v. State, No. S-9730 (Alaska May 3, 2002) (22 pp.).

INSURANCE LAW, "ACCIDENT," "OCCURRENCE," ALLOCATION OF LIABILITY:

The New York Court of Appeals held that lower courts properly placed on an insured the burden of proving that damage was the result of an "accident" or "occurrence" within the meaning of its insurance policies, and properly allocated liability among the insurers. The insured, a former owner and operator of a manufactured gas plant, commenced the instant suit against 24 insurers that issued it general liability policies between 1938 and 1986, demanding defense and indemnification for environmental damages arising from the contamination caused by the plant. The trial and appellate courts correctly placed the burden of proof on the insured. The insured has the initial burden of proving that the damage was the result of an “accident” or “occurrence” to establish coverage where it would not otherwise exist. Once coverage is established, the insurer bears the burden of proving that an exclusion applies. Especially in the environmental pollution context, such a result provides the insured with an incentive to strive for early detection of its release of pollutants. The insured also has better and earlier access to the actual facts and circumstances surrounding the discharge, including information about its own intentions and expectations. In addition, the trial court properly prorated the estimated prospective damages. Where, as here, an alleged continuous harm spans many years and implicates several successive insurance policies, courts have split as to whether each policy is liable for the entire loss, or whether each policy is responsible only for a portion of the loss. This dispute centers on two policy terms: “all sums” and “during the policy period.” The insured argued that it should be permitted to collect its total liability--“all sums”--under any policy in effect during the 50 years that the property damage occurred, up to that policy’s limit. This is referred to as “joint and several allocation.” The insurers argued that a straightforward reading of the phrase “during the policy period” limits an insurer’s liability to “all sums” incurred by the insured “during the policy period." Under this reading, referred to as "pro-rata allocation," the liability is spread among the policies. Under the facts of this case, pro-rata allocation, while not explicitly mandated by the policies, is consistent with the policies' language. The policies provide indemnification for liability incurred as a result of an accident or occurrence during the policy period, not outside that period. The insured's singular focus on “all sums” would read this important qualification out of the policies. Further, joint and several allocation is not supported by case law and is inconsistent with the unambiguous language of the policies at issue. Consolidated Edison Co. of New York v. Allstate Insurance Co., No. 39 (N.Y. May 2, 2002) (19 pp.).

INSURANCE LAW, POLLUTION EXCLUSION, "POLLUTANT":

A Massachusetts appellate court held that pollution exclusion clauses preclude insurers' obligation to defend and indemnify a rubber products manufacturing company in an environmental liability suit brought against it by third parties after contamination was discovered on the company's property. The pollution exclusions in this case are notably unambiguous, and the environmental contamination claim brought against the company is within the scope of the pollution exclusion. The substances that leached into the ground and groundwater at the property are "pollutants" under the policies. The company argued that the rubber feedstock, tires, and other rubber materials used and stored on the property were useful products and, therefore, should not be considered pollutants under the policy exclusion. However, it is irrelevant that the stockpiled rubber materials might be useful products because the company's liability arises out of the release of specific chemicals into the soil and groundwater, not the storage of rubber feedstock. Further, a reasonable policyholder would likely determine that chemical substances leaching into the ground and groundwater from burning rubber, seemingly a classic case of pollution, constitute pollution within the meaning of the policy. Feinberg v. Commercial Union Insurance Co., No. 99-P-1889 (Mass. App. Ct. Apr. 26, 2002) (5 pp.).

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

THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register.

AIR:

  • EPA proposed NESHAPs for semiconductor manufacturing operations. 67 FR 30848 (5/8/02).
  • EPA proposed revisions to the regional haze rule to incorporate sulfur dioxide milestones and a backstop emission trading program for nine western states and eligible Native American tribes within that geographic area. 67 FR 30417 (5/6/02).
  • DOE is seeking comments on possible modifications to the guidelines governing the Voluntary Reporting of Greenhouse Gases Program that allows for the voluntary reporting of greenhouse gas emissions, reductions, and carbon sequestration under the Energy Policy Act of 1992. 67 FR 30370 (5/6/02).
  • EPA announced the availability of an external review draft of Air Quality Criteria for Particulate Matter. 67 FR 31303 (5/9/02).
  • EPA redesignated the Great Falls "not classified" carbon monoxide (CO) nonattainment area to attainment for the CO NAAQS. 67 FR 31143 (5/9/02).
  • EPA announced that it is soliciting applications for the critical use exemption from the phaseout of methyl bromide. 67 FR 31798 (5/10/02).

DRINKING WATER:

  • EPA announced that it intends to approve revisions to Oregon's public water supply supervision primacy program. 67 FR 31304 (5/9/02).

HAZARDOUS WASTES & SUBSTANCES:

  • EPA announced that it has decided to maintain its interpretation that under RCRA regulations, spent catalyst wastes removed from dual purpose hydroprocessing reactors at petroleum refining facilities are listed hazardous wastes. 67 FR 30811 (5/8/02).
  • EPA entered into a proposed administrative settlement under CERCLA in connection with the Beloit Corporation Superfund site in Rockton, Illinois. 67 FR 31804 (5/10/02).
  • EPA entered into a proposed administrative settlement under CERCLA in connection with the Electro-Coatings Superfund site in Cedar Rapids, Iowa. 67 FR 31804 (5/10/02).
  • EPA entered into a proposed de minimis administrative settlement under CERCLA§122(g) in connection with the Great Lakes Container Corporation Superfund site in St. Louis, Missouri. 67 FR 30918 (5/8/02).
  • EPA approved revisions to Utah's hazardous waste program under RCRA. 67 FR 30599 (5/7/02).

OFFICE OF THE PRESIDENT:

  • The President issued an administrative order designating the Administrator of EPA to classify information originally as "secret." 67 FR 31109 (5/9/02).

SMCRA PROGRAM APPROVAL:

  • OSM approved an amendment to Kentucky's permanent regulatory program under SMCRA. 67 FR 30549 (5/7/02).

WATER QUALITY:

  • EPA announced the availability of a report to Congress entitled Paying for Water Quality: Managing Funding Programs to Achieve the Greatest Environmental Benefit. 67 FR 31803 (5/10/02).
  • EPA modified the designation of an ocean dredged material disposal site in the Atlantic Ocean offshore Charleston, South Carolina, by amending the site's restriction on use and shortening the site's name. 67 FR 30597 (5/7/02).

WILDLIFE:

  • The National Marine Fisheries Service announced the availability of a stock assessment report on small coastal sharks in the Atlantic and Gulf of Mexico. 67 FR 30879 (5/8/02).
  • FWS and the US Forest Service amended the operating regulations of the Federal Subsistence Management Program in Alaska by expanding the authority that the Board may delegate to agency field officials and by clarifying the procedures for enacting emergency or temporary restrictions, closures, or openings. 67 FR 30559 (5/7/02).

DOJ NOTICES OF SETTLEMENTS:

  • United States v. J.H. Mitchell & Sons Distributors, Inc., No. 02-03009 CAS (RZx) (C.D. Cal. Apr. 11, 2002). A settling CERCLA defendant must pay $516,000 in US response costs and $84,000 in state response costs incurred at the Baldwin Park Operating Unit of the San Gabriel Valley Superfund sites, Areas 1-4, located in and near Azusa, Irwindale, Baldwin Park, and Covina, California; a second settling CERCLA defendant must pay $860,000 to the United States and $140,000 to the state. 67 FR 31370 (5/9/02).
  • United States v. Waste Management of Massachusetts, Inc., No. 02-CV-10741-GAO (D. Mass. Apr. 23, 2002). A settling CAA defendant that allegedly violated the Act and its implementing regulations in connection with its collection and handling of refuse and recyclables pursuant to a contract with the city of Boston, Massachusetts, must pay a $775,000 civil penalty, must implement two supplemental environmental projects at a combined cost of $2,671,000, must comply with the Act and its regulations, and must provide training to its employees involved in tasks requiring the handling of appliances that may contain refrigerant. 67 FR 31370 (5/9/02).

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

THE CONGRESS

CHAMBER ACTION

  • H.R. 2818 (land conveyance), which would authorize the Secretary of the Interior to convey certain public land within the Sand Mountain Wilderness Study Area in Idaho to resolve an occupancy encroachment dating back to 1971, was passed by the House. 148 Cong. Rec. H2125 (daily ed. May 7, 2002).
  • H.R. 3908 (North American Wetlands Conservation Act), which would reauthorize the North American Wetlands Conservation Act, was passed by the House. 148 Cong. Rec. H2123 (daily ed. May 7, 2002).
  • H.R. 3954 (National Wild and Scenic Rivers), which would designate certain waterways in the Caribbean National Forest in the Commonwealth of Puerto Rico as components of the National Wild and Scenic Rivers System, was passed by the House. 148 Cong. Rec. H2125 (daily ed. May 7, 2002).
  • H.J. Res. 87 (Yucca Mountain Repository), which would approve the site at Yucca Mountain, Nevada, for the development of a repository for the disposal of high-level radioactive waste and spent nuclear fuel, pursuant to the Nuclear Waste Policy Act of 1982, was passed by the House. 148 Cong. Rec. H2180 (daily ed. May 8, 2002).

COMMITTEE ACTION

  • S. 506 (Native American lands; land exchange) was reported by the House Committee on Resources. H. Rep. No. 107-434, 108 Cong. Rec. H2104 (daily ed. May 3, 2002). The bill would amend the Alaska Native Claims Settlement Act, to provide for a land exchange between the Secretary of Agriculture and the Huna Totem Corporation.
  • H.R. 1462 (noxious weeds and invasive plants) was reported by the House Committee on Resources. H. Rep. No. 107-451, 148 Cong. Rec. H2354 (daily ed. May 9, 2002). The bill would require the Secretary of the Interior to establish a program to provide assistance through states to eligible weed management entities to control or eradicate harmful, nonnative weeds on public and private land.
  • H.R. 1906 (Pu'uhonua O Honaunau National Historical Park) was reported by the House Committee on Resources. H. Rep. No. 107-435, 148 Cong. Rec. H2104 (daily ed. May 3, 2002). The bill would amend the Act that established the Pu'uhonua O Honaunau National Historical Park to expand the boundaries of that park.
  • H.R. 2941 (brownfields) was reported by the House Committee on Financial Services. H. Rep. No. 107-448, 148 Cong. Rec. H2234 (daily ed. May 8, 2002). The bill would facilitate the provision of assistance by the Department of Housing and Urban Development for the cleanup and economic redevelopment of brownfields.
  • H.R. 4044 (nutria eradication) was reported by the House Committee on Resources. H. Rep. No. 107-442, 148 Cong. Rec. H2163 (daily ed. May 3, 2002). The bill would authorize the Secretary of the Interior to provide assistance to Maryland for implementation of a program to eradicate nutria and restore marshland damaged by nutria.

BILLS INTRODUCED

  • S. 2473 (Thomas, R-Wyo.) (national parks) would enhance the Recreational Fee Demonstration Program for the National Park Service. 148 Cong. Rec. S4064 (daily ed. May 8, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2474 (Craig, R-Idaho) (federal lands) would provide to the federal land management agencies the authority and capability to manage effectively the federal lands. 148 Cong. Rec. S4064 (daily ed. May 8, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2475 (Bennett, 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. S4064 (daily ed. May 8, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2482 (Wyden, D-Ore.) (land access) would direct the Secretary of the Interior to grant to Deschutes and Crook Counties in the State of Oregon a right-of-way to West Butte Road. 148 Cong. Rec. S4064 (daily ed. May 8, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2483 (Cleland, D-Ga.) (regulatory compliance) would amend the Small Business Act to direct the Administrator of the Small Business Administration to establish a pilot program to provide regulatory compliance assistance to small business concerns. 148 Cong. Rec. S4064 (daily ed. May 8, 2002). The bill was referred to the Committee on Small Business and Entrepreneurship.
  • S. 2494 (McCain, R-Ariz.) (Petrified Forest National Park) would revise the boundary of the Petrified Forest National Park in Arizona. 148 Cong. Rec. S4145 (daily ed. May 9, 2002). The bill was referred to the Committee on Energy and Natural Resources. A companion bill, H.R. 4688, was introduced in the House this period.
  • S. 2501 (Allard, R-Colo.) (nuclear materials transport) would establish requirements arising from the delay or restriction on the shipment of special nuclear materials to the Savannah River Site, Aiken, South Carolina; to the Committee on Armed Services.
  • H.R. 4666 (Davis, R-Va.) (CWA) would amend the CWA to provide assistance for nutrient removal technologies to states in the Chesapeake Bay watershed. 148 Cong. Rec. H2163 (daily ed. May 7, 2002). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 4668 (Hunter, R-Cal.) (renewable energy) would amend the Internal Revenue Code of 1986 to expand the renewable resources production tax credit to include additional forms of renewable energy and would expand the investment tax credit to include equipment used to produce electricity from renewable resources. 148 Cong. Rec. H 2163 (daily ed. May 7, 2002). The bill was referred to the Committee on Ways and Means.
  • H.R. 4670 (Kolbe, R-Ariz.) (environmental conflict resolution) would reauthorize the US Institute for Environmental Conflict Resolution. 148 Cong. Rec. H2164 (daily ed. May 7, 2002). The bill was referred to the Committees on Education and the Workforce, and Resources
  • H.R. 4677 (Young, R-Alaska) (Denali National Park) would clarify the authority for use of snowmachines in certain areas of Denali National Park and Preserve. 148 Cong. Rec. H2164 (daily ed. May 7, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4681 (English, R-Pa.) (Fort Presque Isle National Historic Site) would establish the Fort Presque Isle National Historic Site in Pennsylvania. 148 Cong. Rec. H2234 (daily ed. May 8, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4682 (Murtha, D-Pa.) (Allegheny Portage Railroad National Historic Site) would revise the boundary of the Allegheny Portage Railroad National Historic Site. 148 Cong. Rec. H2234 (daily ed. May 8, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4683 (Pallone, D-N.J.) (CWA) would amend the CWA to clarify that fill material cannot be comprised of waste. 148 Cong. Rec. H2234 (daily ed. May 8, 2002). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 4686 (Watkins, R-Okla.) (Land conveyance) would direct the Secretary of Energy to convey a parcel of land at the facility of the Southwestern Power Administration in Tupelo, Oklahoma. 148 Cong. Rec. H2234 (daily ed. May 8, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4688 (Hayworth, R-Ariz.) (Petrified Forest National Park) would revise the boundary of the Petrified Forest National Park in Arizona. 148 Cong. Rec. H2354 (daily ed. May 9, 2002). The bill was referred to the Committee on Resources. A companion bill, S. 2494, was introduced in the Senate this session.
  • H.R. 4692 (Bishop, D-Ga.) (Andersonville National Historic Site) would amend the Act entitled "An Act to authorize the Establishment of the Andersonville National Historic Site in the State of Georgia" to provide for the addition of certain donated lands to the Andersonville National Historic Site. 148 Cong. Rec. H2355 (daily ed. May 9, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4695 (Callahan, R-Ala.) (National parks) would direct the Secretary of the Interior to study the suitability and feasibility of designating Fort Gaines and Fort Morgan in Alabama as units of the National Park System. 148 Cong. Rec. H2355 (daily ed. May 9, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4707 (Schakowsky, D-Ill.) (aresnic-treated lumber) would prohibit the use of arsenic-treated lumber to manufacture playground equipment, children's products, fences, walkways, and decks, and for all other residential purposes. 148 Cong. Rec. H2355 (daily ed. May 9, 2002). The bill was referred to the Committees on Energy and Commerce, and Agriculture.
  • H.R. 4708 (Simpson, R-Idaho) (land conveyance; water resources) would authorize the Secretary of the Interior to convey certain facilities to the Fremont-Madison Irrigation District. 148 Cong. Rec. H2355 (daily ed. May 9, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4709 (Slaughter, D-N.Y.) (Environmental health) would amend the Public Health Services Act to authorize the Director of the National Institute of Environmental Health Sciences to conduct and coordinate a research program on hormone disruption. 148 Cong. Rec. H2355 (daily ed. May 9, 2002). The bill was referred to the Committees on Energy and Commerce, Resources, and Science.

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

IN THE STATES

To see archived versions of State UPDATE, please go to the State UPDATE section of the UPDATE archive.

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

INTERNATIONAL

GENERAL

  • The Asian Development Bank held its annual meeting in Shanghai. A topic of discussion was the environmental implications of increased growth in urban areas. Agence France-Presse, reporting on the meeting, noted that Asia's rivers have over 20 times the suggested levels of suspended solids, and the region is responsible for over 60 percent of the world's sediment flows. In addition, poor environmental conditions may be responsible for the deaths of up to 5 million infants yearly in the Asia-Pacific region.
  • The United Arab Emirates said it would create an an international center for the collection and analysis of environmental data. "At present, there is a lack of comprehensive data that would enable environment researchers to do comparative studies between diversified environments and access their sustainability efforts and drawbacks," said Majid al-Mansouri, acting secretary general of the UAE's Environmental Research and Wildlife Development Agency. "Each country may now have its own environmental database, but there isn't a joint channel through which this information can be exchanged." See http://www.gulf-news.com/Articles/news.asp?ArticleID=49649
  • The Commission for Environmental Cooperation (CEC) of North America received a submission from Canadian environmental groups alleging that Canada is failing to effectively enforce the pollution prevention provisions of the Fisheries Act and provisions of the Pulp and Paper Effluent Regulations, or PPER, against pulp and paper mills in Quebec, Ontario and the Atlantic provinces.
    Section 36 of the Fisheries Act prohibits the deposit of a deleterious substance in water frequented by fish, except as authorized by regulations such as the PPER. Failure to comply with these regulations is punishable by fines and jail time. The submission (SEM-02-003/Pulp and Paper) was filed by the Sierra Legal Defence Fund (SLDF) on behalf of Friends of the Earth, Union
    Saint-Laurent, Grands Lacs, Conservation Council of New Brunswick, Ecology Action Centre and Environment North. See http://www.cec.org/citizen
  • South Africa's Weather Service forecasts that southern Africa will be hit by another El Nino weather pattern later this year. "Indications are showing that an El Nino is coming, and the data we are getting month after month shows it is under way," said Melton Mugeri of the Service. "It is very bad news indeed. The sea surface temperatures in the equatorial Pacific are expected to peak toward the end of this year. An El Nino is clearly on the way." See http://www.weathersa.co.za/warnings/elnino.html
  • Zambia said it would seek Convention on International Trade in Endangered Species of Flora and Fauna (CITES) approval to conduct a one-time sale of 17 tons of ivory gathered from poachers or culled elephants.
  • Australia, Brazil, France, Germany, the United Kingdom, and the United States were among 18 members of the International Whaling Commission (IWC) who strongly objected to Japan's announced intention to increase the amount of whaling it does under a "research" exemption to the commercial whaling ban. The United States issued a statement on behalf of the group saying that it "consider(s) Japan's actions as undermining the authority of the IWC and as designed to undo the decades of progress that have achieved the substantial level of protection that whales enjoy today."
  • Ecuador said it would seek to keep local fishermen outside a two-mile zone around the Galapagos Islands in exchange for government assistance. "The best thing that could happen to Galapagos is to get fishermen out to the 38, or 39 mile, as far as possible from the two-mile radius," said Environment Minister Lourdes Luque.
  • Chemplast Sanmar, Gujarat Flurochemicals, Mafatlal Industries, and SRF, large Indian producers of chlorofluorocarbons (CFCs), said they would stop production by 2010. India is the second-largest producer of CFCs, behind China.
  • The U.N. Environment Program called for better monitoring of seismic events in Africa. It said that "a new survey of significant earthquakes in Africa shows that between 1980 and the present, the continent has been hit by over 50 serious tremblers, resulting in over 23,000 deaths and injuries and immeasurable economic losses in the countries affected." See http://www.un.org/apps/news/story.asp?NewsID=3587&Cr=earthquake&Cr1=unep

CLIMATE CHANGE

  • The World Bank's International Bank for Reconstruction and Development and International Finance Corporation signed an agreement with the Netherlands to establish two international emissions trading programs. The IBRD Facility has a target of placing up to 70 million Euros (approximately US $62 million) in projects over the first two years of its agreement, which will lead to emission reductions of approximately 16 million metric tonnes of CO2 equivalent. Over the next two years, this Facility will purchase emission reduction credits for renewable energy, energy efficiency, and fuel switching activities, but not for afforestation and reforestation. Based on agreement between the IBRD and the Netherlands, the Facility may continue for a second two-year period. In that second two-year period, the IBRD would purchase additional emission reduction credits worth 70 million Euros, approximately US $62 million. The IFC Facility will place up to 44 million Euros (approximately US $40 million), in projects over the next three years. Eligible projects will include investments in renewable energy, such as wind and biomass power, energy efficiency improvements, recovery and utilization of methane from waste landfills, and switching of fuels to less carbon-intensive sources. IFC, the private sector development arm of the World Bank Group, will focus exclusively on transactions in the private sector. See http://www.worldbank.org, under "Press Releases"
  • Royal Dutch/Shell and Elsam, a Dutch utility, conducted a trade in which Shell took Danish carbon emissions allowances from Elsam in return for U.K. allowances given to Elsam. See http://globalarchive.ft.com/globalarchive/article.html?id=020507000875&query=kyoto
  • Mitsubishi Research Institute Inc. and Natsource Japan Co. will test an emissions trading program in Japan. See http://globalarchive.ft.com/globalarchive/article.html?id=020506001688&query=emissions+trading
  • Canadian Industry Minister Allan Rock added his voice to the growing number who argue that Canada should not ratify Kyoto. In a letter, he agreed that Canada should develop its own plan for emissions reductions. "We should develop scenarios for a Canadian plan that takes action on climate change and considers our unique position in the North American context, while leaving open the Kyoto target as a possible step along the way," he said.
  • Russian President Vladimir Putin said that his country would seriously consider the "pros and cons" of ratification of Kyoto, noting that although "all options" should be taken into account. See http://globalarchive.ft.com/globalarchive/article.html?id=020506002869&query=Kyoto
  • New Zealand Prime Minister Helen Clark said her country would ratify the Kyoto Protocol prior to the World Summit on Sustainable Development, which begin late August in Johannesburg. See http://www.asahi.com/english/national/K2002050300189.html
  • But Australian Prime Minister John Howard said no. "So far as the ratification of Kyoto is concerned, Australia's position is that we believe the inclusion of the United States and developing countries is important if you are to have a really comprehensive global agreement on reduction of greenhouse gas emissions. But that will not prevent Australia and Japan working together, even though we do have some differences in relation to the Kyoto agreement which are understood and respected on both sides." Australia is the world's largest exporter of coal.

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
Jenny Kissinger, Customer Service
April King, Editorial Assistant