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Weekly Update Volume 32, Issue 16

06/03/2002

 LITIGATION

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

STATE SOVEREIGN IMMUNITY, PRIVATE PARTY COMPLAINTS, SHIPPING ACT:

The U.S. Supreme Court held that state sovereign immunity bars the Federal Maritime Commission (FMC) from adjudicating a private party's complaint against a nonconsenting state. A cruise line offering gambling cruises sued the South Carolina State Ports Authority (SCSPA) for denying the cruise line's five applications for a cruise ship berth in the Port of Charleston. The cruise line alleged that the SCSPA had violated the Shipping Act by unlawfully granting preference to other cruise lines that offered gambling. According to FMC procedure, the complaint was referred to an administrative law judge (ALJ), who held that sovereign immunity barred the cruise line's private suit against the state in its form as the SCSPA. The FMC dismissed the ALJ ruling and held that sovereign immunity does not bar the FMC from adjudicating private complaints against state-run ports. The Fourth Circuit reversed the FMC, and the FMC appealed. However, the Eleventh Amendment provides states immunity from suits by private citizens, and the FMC adjudications are the type of proceedings from which the framers of the U.S. Constitution would have thought the states possessed immunity. The FMC's rules of practice and procedure bear close resemblance to civil litigation in federal courts. Likewise, discovery in FMC adjudications mirrors discovery in federal civil litigation. The role of the ALJ in FMC adjudications is also virtually indistinguishable from the role of an Article III judge in civil litigation. Moreover, the preeminent purpose of state sovereign immunity is to accord states the dignity that is consistent with their status as sovereign entities. If the framers of the Constitution thought it impermissible to answer to a private party's suit in federal district court, they would have also found it unacceptable to compel a state to answer to a private suit in a federal administrative tribunal. Further, the fact that the FMC's orders are not self-executing does not suggest that a state is not compelled to participate in an FMC proceeding. Once the FMC issues an order, the sanctioned party, in this case the state, is not permitted to litigate its position in court, and if a party fails to appear before the FMC, it may not argue its position on appeal. Thus, a state charged by a private party with a violation before the FMC must either appear before the FMC or suffer severe penalties. Similarly, the argument that sovereign immunity does not apply because FMC proceedings do not present the same threat to a state's financial integrity as a private suit reflects a fundamental misunderstanding of the purposes of sovereign immunity. Sovereign immunity's central purpose is to afford states due respect, and, in any event, an FMC order may very well result in the withdrawal of state funds. In addition, sovereign immunity applies to maritime concerns, and the fact that a private party is seeking nonmonetary relief is irrelevant for sovereign immunity purposes. Justice Thomas delivered the opinion of the court, in which Chief Justice Rehnquist and Justices Kennedy, O'Connor, and Scalia joined. Justice Stevens dissented. Justice Breyer, as joined by Justices Ginsburg, Souter, and Stevens, also dissented. Federal Maritime Commission v. South Carolina State Ports Authority, No. 01-46 (U.S. May 28, 2002) (49 pp.).

CAA, REGIONAL HAZE RULE, BEST AVAILABILITY RETROFIT TECHNOLOGY (BART):

The D.C. Circuit held that the BART provisions of EPA's regional haze rule violate the CAA, but that the rule's natural visibility goal and no degradation requirement are not arbitrary or capricious. The regional haze rule calls for states to play the lead role in designing and implementing regional haze programs to clear the air in various national parks and wilderness areas. Under the regional haze rule, once a state has decided that a major stationary source is subject to BART and is considering what BART controls to place on the source, the state must analyze four of the five statutory factors under CAA §169A(g)(2) on a source-specific basis. The fifth factor is considered on a group or areawide basis. In effect, EPA bifurcated the states' determination of the appropriate BART emission limitations for specific sources. The text and structure of the CAA, however, indicate that EPA's bifurcation of the BART determination is impermissible. The language of CAA §169A(g)(2) can be read no other way than to indicate that all five factors inform the states' inquiries into what BART controls are appropriate for particular sources. To treat one of the five statutory factors in such a dramatically different fashion distorts the judgments Congress directed the states to make for each BART-eligible source. Additionally, the regional haze rule's BART provisions are inconsistent with CAA provisions giving the states broad authority over BART determinations. Therefore, the regional haze rule's BART provisions were remanded to EPA. The natural visibility goal and the no degradation requirement, however, were properly promulgated and are not arbitrary or capricious. Further, the court's decision to invalidate the BART provisions rendered unripe an environmental group's claims that EPA did not go far enough with the rule. American Corn Growers Ass'n v. Environmental Protection Agency, Nos. 99-1348 et al. (D.C. Cir. May 24, 2002) (25 pp.).

TSCA, RULEMAKING, RIPENESS, NOTICE-AND-COMMENT:

The D.C. Circuit vacated a PCB risk assessment guidance document because the court found it to be a rule improperly published without notice-and-comment. The guidance document issued by EPA was ripe for review. The document is final agency action because it marks the consummation of EPA's decisionmaking process and determines the rights and obligations of both applicants and EPA. Additionally, the document is a rule under TSCA §19(a)(1)(A) and, thus, is subject to the court's review. The document gives substance to the vague language of 40 C.F.R. §761.61(c), does so in an obligatory manner, and is treated by EPA as controlling in the field. Further, the document is binding because it facially requires an applicant for a risk-based variance to calculate toxicity using a certain total toxicity factor. Because the document binds EPA to accept the use of a certain toxicity factor, it follows that the document imposes further obligations on the Agency. And even though the document gives applicants the option of calculating risk in either of two ways, it still requires them to conform to one or the other. Moreover, EPA did not contend that in practice it had not treated the document as binding in the ways described above. Consequently, because EPA issued the document without providing notice-and-comment, the document was vacated. General Electric Co. v. Environmental Protection Agency, No. 00-1394 (D.C. Cir. May 17, 2002) (9 pp.).

NEPA, SIGNIFICANT IMPACTS, NOISE POLLUTION:

The D.C. Circuit held that the FAA failed to adequately consider the cumulative impacts on the natural quiet of Zion National Park in its EA for a nearby airport expansion project. The FAA's EA failed to address the total noise impact that will result from the airport. Although the FAA concluded that the airport may contribute only a 2% increase in the amount of overflights near or over the park, there is no way to determine from the FAA's analysis whether, deferring to the FAA's calculations, a 2% increase, in addition to other noise impacts on the park, will significantly affect the quality of the human environment in the park. Additionally, at no point does the FAA's EA aggregate the noise impacts on the park. The EA does not address the accumulated, or total, incremental impacts of various man-made noises; consider the air tours originating from an existing airport; or address the impact, much less the cumulative impact, of noise in the park as the result of other activities. Without analyzing the total noise impact on the park, the FAA is not in a position to determine whether the additional noise that is projected to come from the airport would cause a significant environmental impact on the park, and, thus, whether an EIS is required. The court, therefore, remanded the case because the record is insufficient for the court to determine whether an EIS must be prepared. On remand, the FAA must evaluate the cumulative impacts of noise pollution on the park. Grand Canyon Trust v. Federal Aviation Administration, No. 01-1154 (D.C. Cir. May 24, 2002) (9 pp.).

TAKING, DRIFT GILLNET SWORDFISHING:

The Federal Circuit held that the 1999 prohibition on drift gillnet swordfishing in the Atlantic Swordfish Fishery did not effect a taking of an individual's fishing permit, boat, or drift gillnets. The ban on draft gillnet fishing did not cause a taking of the individual's fishing permit. The U.S. Supreme Court and other courts have held that no property rights are created in permits and licenses. The individual did not have the right to assign, sell, or otherwise transfer his permit, and the rights to sell, assign, or otherwise transfer are traditional hallmarks of property. Additionally, because the permit did not confer exclusive fishing privileges, the individual did not have the authority to exclude others from the fishery, and the government at all times retained the right to revoke, suspend, or modify the permit. Further, the Magnuson-Stevens Fishery Conservation and Management Act, under which the permit was issued, states that the limited access authorization system shall not create any right, title, or interest in or to any fish and that the U.S. Department of Commerce may adopt regulations that limit or terminate a particular permit system without compensation to the holders. The absence of crucial indicia of a property right, coupled with the government's irrefutable retention of the right to suspend, revoke, or modify the individual's permit, compels the conclusion that the permit bestowed a revocable license, instead of a property right, and thus there was no taking. Moreover, the ban did not deprive the individual of all economically viable use and enjoyment of his boat, gillnets, or related gear. The individual's continuing ability to sell the vessel, gear, and fish in a different fishery or to put the nets and vessel to other uses preclude a finding that a regulatory taking occurred. Conti v. United States, No. 01-5068 (Fed. Cir. May 29, 2002) (19 pp.).

RIVERS AND HARBORS APPROPRIATIONS ACT (RHAA), DOCK ADDITION, PERMITS:

The Second Circuit affirmed a district court decision holding that an individual had constructed two floats on his dock without securing a permit from the U.S. Army Corps of Engineers in violation of the RHAA and requiring the individual to remove the floats. In 1988, the individual applied to the Corps and received a permit to build a pier on his property, which is located at the end of a canal that can be sailed to the Atlantic Ocean when tidal conditions permit. Storms caused significant damage to the structure, and in the early 1990s the individual applied to the state environmental agency and received a permit to build two additional floats attached to his original pier. However, the canal is a navigable waterway and the new construction was not authorized by the original 1988 Corps permit. The construction of the floats, therefore, was unlawful. The fact that the canal may be impassable at low tide is immaterial because the Corps' jurisdiction under RHAA §10 extends to the average high water shoreline. Additionally, the individual failed to raise before the district court his claim that his permit application to the state agency was a joint state/Corps permit application; thus, it was not properly before the court. Even were the court to consider this issue, however, the argument lacked merit. Congress gave the Corps exclusive jurisdiction to enforce the RHAA, and the mere existence of a joint form does not demonstrate that the submission of an application to the state agency is an application to the Corps. United States v. Angell, No. 01-6141 (2d Cir. May 16, 2002) (6 pp.).

ASBESTOS REMOVAL, ASBESTOS REGULATIONS, FINAL AGENCY ACTION:

The Seventh Circuit held that it lacked jurisdiction to grant an individual's motion to dismiss an EPA order issued to the individual regarding his failure to comply with federal regulations while conducting an asbestos removal. The order issued to the individual was not a final agency action. It did not mark the consummation of anything, as its terms refer only to the possibility that an enforcement process may be initiated in the future event of noncompliance with existing regulations highlighted in the order. The order has no legal force except to impose upon the individual the already-existing burden of complying with the CAA and its implementing regulations. Additionally, the order did not impose upon the individual any sanction or administrative penalty. Therefore, the court is without jurisdiction to hear the individual's motion and it was dismissed. Acker v. Environmental Protection Agency, No. 01-1928 (7th Cir. May 17, 2002) (4 pp.).

PETROLEUM SALE, OVERCHARGE, REIMBURSEMENT:

The Federal Circuit affirmed a district court holding that a third party did not have to pay prejudgment interest to an oil production company that was ordered to reimburse another oil company for an overcharge of the purchase price of petroleum products. The oil production company had improperly classified an oil well, in which the third party had an interest, and the improper classification resulted in an overcharge of the purchase price. After being sued, the oil production company reimbursed the oil company for the overcharge amount and was ordered to pay prejudgment interest as well. The oil production company then sued the third party to recover both the overcharge amount and prejudgment interest. Although the district court ordered the third party to pay the overcharge amount, it did not require the third party to pay prejudgment interest. In doing so, the district court correctly exercised its equitable powers. The district court retained its full and traditional power to equitably determine the scope of the remedy for a federal common law claim of restitution, and was not mandated by governing statutes to award prejudgment interest once the overcharge was proven. Additionally, simply because no appellate case has yet affirmed a denial of prejudgment interest of the temporal magnitude present here does not equate to precedent against such a denial. Further, the district court's equitable power vitiates against a stricture on district court flexibility in determining the amount of prejudgment interest, and the district court had persuasive authority for its denial from a similar case. Conoco, Inc. v. J.M. Huber Corp., No. 01-1554 (Fed. Cir. May 14, 2002) (16 pp.).

NEPA, EA, LIVESTOCK GRAZING PERMITS, RESCISSIONS ACT:

A district court held that the Forest Service violated NEPA and the Rescissions Act by reissuing a permit for livestock grazing in the Gallatin National Forest without first conducting a NEPA review. In 1994, the Service implemented a policy to conduct NEPA analyses for the reissuance of grazing permits. Because of the large number of permits issued every year, and in response to the threat that many permits would not be reissued due to the Service's failure to complete NEPA review, Congress enacted the Rescissions Act. The Act established a temporary exemption from NEPA review for those permits that were up for reissuance before the NEPA review for that allotment had been completed. Pursuant to the Rescissions Act, the Service set a 1998 NEPA EA and decision date for the Horse Butte allotment, located in the Gallatin National Forest. The Service missed the 1998 deadline, and in 1999, the date for NEPA review completion of the Horse Butte allotment was moved to 2004. Meanwhile, the Service, again relying on the Recessions Act, reissued a grazing permit for the Horse Butte allotment in December 2000. The permit was issued illegally, however, because the Rescission Act's plain language indicates without ambiguity that the Service may not amend its schedule for NEPA compliance. Congress did not grant the Service an indefinite time to get the NEPA work done. To the contrary, it insisted that it be done within a certain period of time and that the Service maintain the schedule it set within that period. Additionally, nullifying the permit does not defeat the legislative purpose of the Rescissions Act. The Act creates a temporary exemption from NEPA and relieves the permitees of harsh consequences only if the Service adopts and adheres to a schedule. Therefore, the permit was vacated. Greater Yellowstone Coalition v. Bosworth, No. 01-1516 (RMU/JMF) (D.D.C. May 13, 2002) (Facciola, J.) (15 pp.).

INVERSE CONDEMNATION, LEACHATE, METHANE GAS, STATUTE OF LIMITATIONS:

A district court held that an individual's claims of inverse condemnation and negligence arising from leachate and methane gas contamination of the individual's property from a neighboring county-owned landfill are barred by the state's three-year statute of limitations. The record clearly shows that the individual had notice of potential harm, thereby time-barring his federal inverse condemnation claim. A letter by the state environmental agency identified the groundwater and methane gas problems and recommended that if development of the individual's property were to be permitted, notice of the environmental dangers be given to prospective land purchasers. The expression of these concerns by the state agency had at least a possible or potential effect on the value of the individual's property. Similarly, the individual's negligence and inverse condemnation claims under state law are time-barred. The individual's nuisance claim, however, may not be time-barred because under state law each new day of a temporary nuisance gives rise to a new cause of action. That issue was therefore remanded to state court for its determination. Legg v. County Commissioners of Dorchester County, No. JFM-02-533 (D. Md. May 15, 2002) (Motz, J.) (8 pp.).

CERCLA, PROPERTY CONTAMINATION, BANKRUPTCY:

A district court granted in part and denied in part a steel company's and city's motions for injunctions against one another in a case involving the parties' liability for cleanup under CERCLA. The company filed suit against the city claiming that the city had contaminated the company's property and violated an easement agreement between the parties. The company further alleged that the city violated CERCLA when it used hazardous waste materials to construct an embankment. The company then filed for bankruptcy. The city filed a motion for an injunction against the asset protection plan being used by the company, claiming that it failed to provide for the city's environmental counterclaims against the company. The company filed a motion for injunction based on its bankruptcy petition, arguing that the automatic stay provision in the Bankruptcy Code protected it from the city's claims. However, the legislative history of the automatic stay provision states that where a governmental unit is suing a debtor to prevent or stop violation of environmental protection or similar police or regulatory laws, the action is not stayed under the automatic stay. Thus, the company's motion for an injunction is denied insofar as it seeks to stay the city's motion for an injunction requiring it to abate environmental nuisance on the property. Additionally, the city argued that it is entitled to an injunction on its counterclaims against the company on the basis that the company is liquidating its assets and will have insufficient funds to satisfy the city's claims if the city prevails at trial. The court, however, is unwilling to issue such an injunction without conducting an evidentiary hearing. LTV Steel Co., Inc. v. City of Buffalo Urban Renewal Agency, No. 99-CV-0624E(F) (W.D.N.Y. May 9, 2002) (Elfvin, J.) (9 pp.).

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

THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register.

AIR:

  • EPA promulgated a rule that exempts motorcycles with emission control devices that could be affected by the use of leaded gasoline from having to be equipped with gasoline tank filler inlet restrictors. 67 FR 36765 (5/24/02).

  • EPA supplemented its proposed NESHAP for municipal solid waste landfills by adding a definition of "bioreactors" to the proposed rule and by proposing timely control for bioreactors located at municipal solid waste landfills with a design capacity greater than or equal to 2.5 million megagrams and 2.5 million cubic meters. 67 FR 36459 (5/23/02).

  • EPA proposed emission standards for new marine diesel engines at or above 30 liters per cylinder and 2.5 to 30 liters per cylinder on U.S. vessels. 67 FR 37547 (5/29/2002).

  • EPA proposed clarifications to the final rule entitled "Standards of Performance for Municipal Solid Waste Landfills," which was published on March 12, 1996 (61 FR 9905). 67 FR 36475 (5/23/02).

  • EPA proposed to find that the Fairbanks, Alaska, nonattainment area attained the NAAQS for carbon monoxide as of December 31, 2001. 67 FR 36135 (5/23/02).

  • EPA announced that California has requested a grant of waiver of preemption under CAA §209(b) for amendments to its low emission vehicle (LEV) regulations; the state also requested EPA to confirm the California Air Resources Board's determination that a limited portion of the LEV amendments--the 1999 zero emission vehicle amendments--are within the scope of previously issued waivers granted by EPA. 67 FR 35809 (5/21/02).

  • EPA entered into a proposed settlement under CAA §113(g) in three consolidated cases that concern EPA's full approval of the part 70 operating permit programs in 34 air districts in California. 67 FR 35812 (5/21/02).
  • EPA announced that it has notified the Lubrizol Corporation of proposed Alternative Tier 2 testing requirements for Winter PuriNox, a motor-vehicle diesel fuel developed by Lubrizol that contains significant amounts of water and methanol, under the fuel and fuel additive registration testing requirements. 67 FR 35808 (5/21/02).

DRINKING WATER:

  • EPA announced that it has tentatively decided to approve revisions to South Carolina's public water system supervision program; the revisions concern the interim enhanced surface water treatment rule and disinfection by-product rule. 67 FR 36184 (5/23/02).
  • EPA announced that it intends to approve revisions to Tennessee's public water system supervision program; the revisions concern the interim enhanced surface water treatment rule and the disinfection/disinfectants byproducts rule. 67 FR 36185 (5/23/02).
  • EPA announced that it intends to approve revisions to Tennessee's public water system supervision program; the revisions concern the lead and copper rule. 67 FR 36185 (5/23/02).
  • EPA announced that it intends to approve revisions to Mississippi's public water system supervision program. 67 FR 38113 (5/31/02).
  • EPA denied a petition to designate the La Cienega Valley Area Aquifer in New Mexico as a sole source acquifer. 67 FR 38113 (5/31/02).

HAZARDOUS WASTES & SUBSTANCES:

  • EPA entered into a proposed administrative settlement under CERCLA §122(i) in connection with the Robesonia Mercury Spill site in Robesonia, Pennsylvania. 67 FR 35813 (5/21/02).
  • EPA entered into a proposed settlement under CERCLA §122(h) with Beazer East, Inc., located in Morrisville, North Carolina. 67FR 37432 (5/29/2002).
  • EPA entered into a proposed prospective purchaser agreement under CERCLA in connection with a railroad corridor and related property in Utah. 67 FR 36598 (5/24/02).
  • EPA entered into a proposed prospective purchaser agreement concerning the Sharon Steel Superfund Site in Midvale, Utah, that resolves any potential liability for response costs incurred and to be incurred by EPA and the Utah Department of Environmental Quality. 67 FR 37432 (5/29/2002).
  • EPA granted a petition to exclude a wastewater treatment sludge generated at Weirton Steel Corporation's Weirton, West Virginia, facility from the lists of hazardous wastes. 67 FR 36110 (5/23/02).
  • EPA promulgated two site-specific treatment variances from the land disposal restrictions standards for wastes generated at U.S. Ecology Idaho, Inc., in Grandview, Idaho, and CWM Chemical Services, LLC, in Model City, New York. 67 FR 35924 (5/22/02).
  • EPA granted a site-specific treatment variance from the land disposal restrictions standards for two selenium-bearing hazardous wastes generated at the Chemical Waste Management, Inc., facility in Kettleman
    City, California. 67 FR 36813 (5/28/2002).
  • EPA announced the availability of its report to Congress, Evaluating the Consensus Best Practices Developed Through the Howard Hughes Medical Institutes' Collaborative Hazardous Waste Management Demonstration Project and the Need for Regulatory Changes to Carry Out Project Recommendations. 67 FR 37803 (5/30/02).

NATIONAL FORESTS:

  • The U.S. Forest Service issued two interim directives to provide internal administrative direction to guide its employees during wildlife firefighting activities: one clarifies that the safety of firefighters, personnel, and the public is the first priority in fire suppression; the second directive provides that under no circumstances should an emergency response action be delayed in order to initiate emergency consultation under the ESA. 67 FR 35789 (5/21/02).
  • The Forest Service issued an interim directive to provide internal administrative direction to guide its employees in the processing of proposals and applications to transfer National Forest System lands to public school districts for educational purposes under the Educational Land Grant Act of 2000. 67 FR 38065 (5/31/02).

PESTICIDES:

  • EPA issued an exemption order announcing its decision to grant an exemption until December 31, 2016, from the child-resistant packaging senior-adult test and younger-adult test effectiveness specifications for prefilled, nonrefillable ant or roach insecticide bait stations not designed or intended to be opened or activated in a manner that exposes the contents to human contact. 67 FR 35910 (5/22/02).
  • EPA issued an exemption order announcing its decision to grant an exemption until December 31, 2016, from the child-resistant packaging senior-adult test and younger-adult test effectiveness specifications for prefilled, nonrefillable termite insecticide bait stations not designed or intended to be opened or activated in a manner that exposes the contents to human contact. 67 FR 35909 (5/22/02).
  • EPA determined that 275 organophosphate tolerances can be reassessed at this time under the Food Quality Protection Act. 67 FR 35991 (5/22/02).

RADIOACTIVE WASTE:

  • EPA announced the availability of DOE documents applicable to characterization of transuranic radioactive waste at the Rocky Flats Environmental Technology Site proposed for disposal at the Waste Isolation Pilot Plant. 67 FR 35471 (5/20/02).

SMCRA PROGRAM APPROVALS:

  • OSM approved an amendment to Oklahoma's regulatory program under SMCRA. 67 FR 36514 (5/24/02).
  • OSM approved an amendment and removed amendments to West Virginia's surface coal mining regulatory program under SMCRA. 67 FR 37609 (5/29/02).

TOXIC SUBSTANCES:

  • EPA issued a second list of priority chemicals for acute exposure guideline level development. 67 FR 38106 (5/31/02).

WATER QUALITY:

  • EPA established a no discharge zone for state waters within the boundary of the Florida Keys National Marine Sanctuary under CWA §312(f)(4)(A). 67 FR 35735 (5/21/02).
  • EPA issued a general administrative compliance order applicable to those dischargers affected by the Agency's December 18, 2001, modification to the NPDES general permit for the western portion of the outer continental shelf of the Gulf of Mexico for discharges from new sources, existing sources, and new dischargers in the offshore subcategory of the oil and gas extraction category. 67 FR 35541 (5/20/02).

WILDLIFE:

  • FWS, pursuant to the ESA, designated approximately 190 hectares (469 acres) in Santa Cruz County, California, as critical habitat for the robust spineflower. 67 FR 36822 (5/28/2002).
  • FWS designated approximately 7,620 hectares (18,830 acres) of land in Santa Cruz and Monterey Counties, California, as critical habitat for the Monterey spineflower pursuant to the ESA. 67 FR 37497 (5/29/2002).
  • FWS designated approximately 116 hectares (287 acres) of land in Santa Cruz County, California, as critical habitat for the Scotts Valley spineflower pursuant to the ESA. 67 FR 37336 (5/29/2002).
  • The National Marine Fisheries Service (NMFS) announced Pacific halibut and red king crab bycatch rate standards for the second half of 2002. 67 FR 36845 (5/28/2002).
  • NMFS extended the expiration date of the emergency rule that established the commercial quotas for large and small coastal sharks at 1,285 metric tons (mt) dressed weight (dw) and 1,760 mt dw, respectively. 67 FR 37354 (5/29/2002).
  • NMFS is imposing, for a 30-day period, additional restrictions on shrimp trawlers in offshore Atlantic waters west of Cape Fear, North Carolina, and north of St. Augustine, Florida, in order to reduce mortality of listed sea turtles incidentally captured in shrimp trawls. 67 FR 37723 (5/30/02).

DOJ NOTICES OF SETTLEMENTS:

  • United States v. Centel Corp., No. 02-4090 (D.S.D. May 9, 2002). A settling CERCLA defendant must provide the United States with access to the Fawick Park site in Sioux Falls, South Dakota, and must waive any claims it might have against the United States relating to removal activities at the site. 67 FR 36226 (5/23/02).
  • United States v. LTV Steel Co., No. 98-570 (W.D. Pa. May 13, 2002); No. 1:98CV3012 (N.D. Ohio May 13, 2002). A settling CAA defendant that violated the Act while operating its steel facilities in Pittsburgh and Cleveland must, in connection with the Pittsburgh facility, pay $3.45 million in civil penalties to the United States, pay $2.3 million in civil penalties to the Alleghany County Health Department, and must pay $100,000 to the Group Against Smog and Pollution for an environmental project to rejuvenate the Hazelwood, Pennsylvania, community; in connection with the Cleveland facility, the defendant must pay $1.25 million in civil penalties to the United States. Because the defendant filed for bankruptcy protection in December 2000, the plaintiffs shall have allowed general unsecured claims against the defendant for the amounts specified above. 67 FR 36226 (5/23/02).
  • United States v. Oil & Solvent Process Co., Nos. CV 98-0760 et al. (C.D. Cal. Apr. 22, 2002). Settling CERCLA defendants must pay $47,500 to California and $902,500 to the United States for response costs incurred at the San Gabriel Valley Superfund site, Suburban Operable Unit, in Los Angeles, California. 67 FR 36227 (5/23/02).
  • United States v. Torch Energy Co., No. CV-02-3977 RSWL (Ex) (C.D. Cal. May 16, 2002). Settling Oil Pollution Act defendants must pay $2,397,000 to the United States and California for natural resource damages arising from the September 27, 1997, spill of oil from the offshore drilling platform named "Irene." 67 FR 37862 (5/30/02).
  • United States v. Stallworth Timber Co., No. 02-0864 (W.D. La. May 2, 2002). A settling CERCLA defendant must pay $100,000 in past U.S. response costs incurred at the American Creosote Works, Inc., Superfund site in Winnfield, Louisiana. 67 FR 38147 (5/31/02).

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

THE CONGRESS

CHAMBER ACTION

  • H.R. 3009 (international trade; fast track trade authority), which would extend the Andean Trade Preference Act and provide the President with fast track trade authority, was passed by the Senate. 148 Cong. Rec. S4744 (daily ed. May 23, 2002).

COMMITTEE ACTION

  • H.R. 2643 (Fort Clatsop National Memorial) was reported by the House Committee on Resources. H. Rep. No. 107-456 (daily ed. May 14, 2002). The bill would authorize the acquisition of additional lands for inclusion in the Fort Clatsop National Memorial in Oregon.

BILLS INTRODUCED

  • S. 2535 (Boxer, D-Cal.) (wilderness; scenic rivers) would designate certain public lands as wilderness and certain rivers as wild and scenic rivers in California, would designate Salmon Restoration Areas, and would establish the Sacramento River National Conservation Area and Ancient Bristlecone Pine Forest. 148 Cong. Rec. S4623 (daily ed. May 21, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2544 (Levin, D-Mich.) (CWA) would amend the CWA to authorize EPA to make grants for remediation of sediment contamination in areas of concern and would authorize assistance for research and development of innovative technologies for such remediation. 148 Cong. Rec. S4702 (daily ed. May, 22, 2002). The bill was referred to the Committee on Environment and Public Works.
  • S. 2545 (Domenici, R-N.M.) (nuclear materials) would extend and improve U.S. programs on the proliferation of nuclear materials. 148 Cong. Rec. S4702 (daily ed. May 22, 2002). The bill was referred to the Committee on Armed Services.
  • H.R. 4781 (Gilchrest, R-Md.) (Marine Mammal Protection Act) would reauthorize the Marine Mammal Protection Act of 1972. 148 Cong. Rec. H2734 (daily ed. May 21, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4784 (Duncan, R-Tenn.) (Midway Atoll) would direct the Secretary of the Interior to replace the FWS as the federal agency responsible for the administration, protection, and preservation of Midway Atoll. 148 Cong. Rec. H2734 (daily ed. May 21, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4792 (Horn, R-Cal.) (water desalination) would reauthorize funding for the Water Desalination Act of 1996. 148 Cong. Rec. H2943 (daily ed. May 22, 2002). The bill was referred to the Committees on Resources, and Science.
  • H.R. 4795 (McInnis, R-Colo.) (chronic wasting disease) would provide for a multi-agency cooperative effort to encourage further research regarding the causes of chronic wasting disease and methods to control the further spread of the disease in deer and elk herds, would provide for monitoring the incidence of the disease, and would support state efforts to control the disease. 148 Cong. Rec. H2943 (daily ed. May 22, 2002). The bill was referred to the Committees on Resources, and Agriculture.
  • H.R. 4802 (Cubin, R-Wyo.) (SMCRA) would amend SMCRA to increase the incentives for states and Indian tribes to achieve reclamation priorities under that Act with respect to coal mining. 148 Cong. Rec. H2943 (daily ed. May 22, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4807 (Gilchrest, R-Md.) (Susquehanna National Wildlife Refuge; land acquisition) would authorize the Secretary of the Interior to acquire the property in Cecil County, Maryland, known as Garrett Island for inclusion in the Susquehanna National Wildlife Refuge. 148 Cong. Rec. H2943 (daily ed. May 22, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4808 (Herger, R-Cal.) (wild and scenic rivers) would amend the Wild and Scenic Rivers Act to ensure congressional involvement in the process by which rivers that are designated as wild, scenic, or recreational rivers by an act of the legislature of the state or states through which they flow may be included in the national wild and scenic rivers system. 148 Cong. Rec. H2943 (daily ed. May 22, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4812 (Kucinich, D-Ohio) (genetic engineering) would provide additional protections for farmers and ranchers that may be harmed economically by genetically engineered seeds, plants, or animals, and would ensure fairness for farmers and ranchers in their dealings with biotech companies that sell genetically engineered seeds, plants, or animals. 148 Cong. Rec. H2944 (daily ed. May 22, 2002). The bill was referred to the Committee on Agriculture.
  • H.R. 4813 (Kucinich, D-Ohio) (genetic engineering) would amend the Federal Food, Drug, and Cosmetic Act with respect to the safety of genetically engineered foods. 148 Cong. Rec. H2944 (daily ed. May 22, 2002). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 4814 (Kucinich, D-Ohio) (genetic engineering) would amend the Federal Food, Drug, and Cosmetic Act, the Federal Meat Inspection Act, and the Poultry Products Inspection Act to require that food that contains a genetically engineered material, or that is produced with a genetically engineered material, be labeled accordingly. 148 Cong. Rec. H2944 (daily ed. May 22, 2002). The bill was referred to the Committees on Agriculture, and Energy and Commerce.
  • H.R. 4815 (Kucinich, D-Ohio) (genetic engineering) would ensure that efforts to address world hunger through the use of genetically engineered animals and crops actually help developing countries and peoples while protecting human health and the environment. 148 Cong. Rec. H2944 (daily ed. May 22, 2002). The bill was referred to the Committees on International Relations, and Ways and Means, Financial Services, and Agriculture.
  • H.R. 4816 (Kucinich, D-Ohio) (genetic engineering) would assign liability for injury caused by genetically engineered organisms. 148 Cong. Rec. H2944 (daily ed. May 22, 2002). The bill was referred to the Committees on the Judiciary, and Energy and Commerce.
  • H.R. 4819 (McInnis, R-Colo.) (Gunnison National Park) would revise the boundary of the Black Canyon of the Gunnison National Park and Gunnison Gorge National Conservation Area in Colorado. 148 Cong. Rec. H2944 (daily ed. May 22, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4822 (Rehberg, R-Mont.) (Upper Missouri River Breaks National Monument) would clarify that the Upper Missouri River Breaks National Monument does not include within its boundaries any privately owned property. 148 Cong. Rec. H2944 (daily ed. May 22, 2002) The bill was referred to the Committee on Resources.
  • H.R. 4826 (Walden, R-Ore.) (Federal Power Act) would amend the Federal Power Act to prohibit round trip sales of electric power. 148 Cong. Rec. H2944 (daily ed. May 22, 2002) The bill was referred to the Committee on Energy and Commerce.

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 fourth and final global preparatory meeting for the World Summit on Sustainable Development (WSSD) began in Bali, Indonesia, with about 6,000 delegates assembling to consider a draft plan, prepared by Johannesburg preparatory committee head Emil Salimto, to reduce poverty, improve sanitation and access to electricity, preserve ecosystems, reform consumption patterns, and address pressing environmental issues in Africa. See http://www.un.org/News/Press/docs/2002/envdev643.doc.htm. Several environmental groups said that the plan "does not reflect the spirit, vision and mission of the WSSD; rather, it appears more suitable as a core document for a 'Northern Government Summit for Unsustainable Development.'" "The players are a very long way apart in terms of reaching any significant agreement," Friends of the Earth spokesman Ian Willmore said. "If (Bali) doesn't work, then it means the Earth Summit won't work. In a nutshell, the U.S. wants . . . to avoid signing up to binding international agreements on quite a wide range of areas on which other people might want to see progress." A British delegate said there was a "fundamental divide" between the United States and the rest of the world. A U.S. delegate said that the United States is "trying to accommodate both civil society and the business community." World Summit chief Nitin Desai, who is also the United Nations (U.N.) undersecretary general for economic and social affairs, voiced optimism "that we will be reaching agreements." The goal in Bali is to "see whether we can come up with a program of action which is clear in terms of goals, in terms of activities to be undertaken and in terms of the resources," Desai said. See http://baliprepcom.org and http://www.johannesburgsummit.org/
  • Salimto said that developing countries are seeking a debt swap for environmental protection measures deal. "Creditor countries should provide debt relief so that money can be used for environmental protection instead of being used for servicing debt," he said. "Developed countries are trying to link debt with environmental protection. We are seeking a sort of debt-for-sustainable development swap." Also, it appeared that mandatory corporate accountability standards would not be endorsed. See http://www.un.org/News/Press/docs/2002/envdev642.doc.htm
  • U.S. Undersecretary of State for Global Affairs Paula Dobriansky said the United States would, both at Bali and in South Africa, emphasize good governance, free markets, and public-private partnerships. She said "productivity-driven growth" is a prerequisite for sustainable development. "Assistance cannot only flow in one direction, and there can't be at the other end an absence of commitment." Dobriansky described six specific goals for the Summit, as outlined in a "vision statement" prepared by the Bush Administration: reducing the number of people without safe drinking water and seeking better water management; providing access to clean energy; stemming HIV/AIDS, tuberculosis, and malaria; ensuring universal basic education without sex discrimination; cutting hunger and improving agricultural productivity without damage to the environment; and conserving forests and oceans. She made little mention of climate change.
  • Russian Minister of Civil Defense, Emergencies and Natural Disasters Sergei Shoigu said that over 230 wildfires in far eastern Russia were out of control.
  • Russia confirmed that it is considering construction of a large nuclear waste disposal site near its Siberian nuclear testing site. It denied speculation that the site would accept waste from other countries. The governor of the region said that extra-regional waste would not be tolerated, let alone waste from other nations.
  • Mexico announced a plan to pay off its water "debt" to the United States over the next five years through a scheme it said would not require new conservation measures.
  • In its annual Taking Stock report, the Commission for Environmental Cooperation of North America (CEC) states that almost 3.4 million tons of chemical waste was generated in Canada and the United States in 1999. See http://www.cec.org/takingstock/
  • The CEC received Mexico's response to citizen submission SEM-02-002, which asserts that Mexico is failing to effectively enforce its environmental laws with respect to noise from the Mexico City International Airport (Aeropuerto Internacional de la Ciudad de México-AICM). See http://www.cec.org/citizen
  • The Global Environment Facility Council approved $113.7 million in funding for 20 environmental projects. See http://www.gefweb.org/May_2002_work_program_press_release.pdf
  • Australian scientists said that the coral reefs off the Raja Ampat Islands may be the most biologically diverse reefs in the world. See http://news.bbc.co.uk/hi/english/sci/tech/newsid_1989000/1989916.stm
  • The European Union (EU) proposed significant changes in the Common Fisheries Policy (CFP). The plan would result in an estimated withdrawal of some 8,600 vessels, which represents 8.5% of the number of EU fishing vessels. "It's make or break time for EU fisheries. If we want to give our fishermen a future, we need a new CFP. Either we have the courage to make bold reforms now, or we watch the demise of our fisheries sector in the years ahead. The desperate race for fish has to stop. Over-capacity is the enemy-not only of the fish stocks, but also of the future of our fishermen. We want EU aid to work for conservation, not against it. This means more EU money to help fishermen, more money to scrap vessels, no more money for building new vessels. Only the right balance between our fleet and available fish will bring economic stability to the EU fleet and maintain employment in coastal areas. The Commission is determined to end the yearly setting of fishing quotas at unrealistic levels. We want to see a long-term approach, allowing the dwindling stocks to recover and giving fishermen more stability to plan ahead. To clamp down on those who cheat we propose more efficient controls and tighter and uniform sanctions. We are laying out an action plan to fight illegal fishing and ensure sustainable fisheries beyond EU waters. Today we have fired the starting shot for a socially, economically and environmentally healthy EU fishing sector," Franz Fischler, Commissioner for Agriculture, Rural Development and Fisheries, said. Significant opposition is expected. See http://europa.eu.int/comm/fisheries/news_corner/press/inf02_07_en.htm
  • The EU's Council of Ministers said that the EU will sign the International Treaty on Plant Genetic Resources for Food and Agriculture. "We must preserve and improve the diversity and quality of the food on offer in the EU," said David Byrne, Commissioner responsible for Health and Consumer Protection.
  • The Food and Veterinary Office of the European Commission (EC) published the report of the year 2000 pesticide residue monitoring program. The report contains the results of analysis of pesticide residues in 45,000 samples of fruits, vegetables, and cereals. Fully 61% of the samples contained no detectable pesticide residues, and in a further 35% the levels found were below the maximum safety limits. However, in the remaining 4.5% of samples the limits were exceeded. See http://europa.eu.int
  • The EC found that the German laws on the promotion of electricity from renewable energy sources and from combined heat and power (CHP) do not constitute impermissible state aid. The two laws favor electricity from renewable energy sources and from CHP installations by obliging operators to purchase "green" electricity at minimum prices.
  • The EC issued a report, Scenarios for co-existence of genetically modified, conventional and organic crops in European agriculture. It concludes that "compliance with the [existing] 1% threshold [for genetically modified (GM) organisms] is possible, however in some cases only through changes in farming practices. This also means setting up monitoring systems as well as insurance needs. It may result in additional costs of 1 to 10% of current product price for the farm-crop combinations studied (in the 50% scenario of GM crops in a region)." See http://www.jrc.cec.eu.int/GECrops/
  • The EC issued a white paper that acknowledged that the compliance costs associated with the new EU chemicals policy would be much higher than previously estimated. See http://europa.eu.int/comm/enterprise/chemicals/conference/conference2/index.htm
  • The annual meeting of the International Whaling Commission ended in Shimonoseki, Japan. The Commission voted to authorize the Makah people of the northwestern United States to hunt five gray whales and to permit St. Vincent and the Grenadines to double its quota of humpback whales to four. But a proposal to allow Russian and U.S. indigenous peoples to hunt bowhead whales was rejected twice. "I'm very distressed" said George Ahmaogak, the mayor of an Inuit community in the United States. "More than 10,000 people depend on those whales. . . . It's 80 percent of our diet. We need the blubber to keep our blood thick in the intense cold. Without it, we're in trouble."
  • U.S. delegation head Rolland Schmitten characterized the U.S.-Russian defeat "the most unjust, unkind and unfair vote ever taken in the 56 years of IWC history. . . . It appears there is a barter system going on. . . . We're bartering on something other than the quota." He suggested that the votes were recommended by Japan in retaliation for its own disappointments. Japan said it opposed a "double standard."
  • Anti-whaling countries, led by the United States, rejected Iceland's application for membership, thus defeating any chance of Japan's obtaining approval of its request to hunt 50 minke whales per year. "We are the victim of a dirty-tricks campaign and have decided not to take any further part in this charade, because we are compelled to sit on the sidelines while the proceedings are hijacked by a narrow majority that is determined to advance its own domestic cultural prejudices at the expense of its obligations under international law," said Icelandic commissioner Stefan Asmundsson.
  • A compromise that would have set Japan's limit at 25 was never debated. Proposals for two new whale sanctuaries--one in the south Atlantic, the other in the south Pacific--were also defeated. Mexico signed an accord making its waters a sanctuary, the largest in the world.
  • The European Environment Agency released Environmental Signals 2002-Benchmarking the Millennium. See http://reports.eea.eu.int/environmental_assessment_report_2002_9/en
  • The U.N. Environment Program (UNEP) issued Global Environment Outlook 3. It concludes that the planet is at a "crucial crossroads with the choices made today critical for the forests, oceans, rivers, mountains, wildlife and other life support systems upon which current and future generations depend." "In addition to analyzing habitat disturbance caused by poorly planned infrastructure growth, the report cautions that more than half of all people could be living in severely 'water-stressed' areas by 2032 if market forces drive the globe’s agenda." See http://www.unep.org/geo/geo3/index.htm and http://www.un.org/apps/news/story.asp?NewsID=3743&Cr=environment&Cr1=
  • The UNEP also issued a report on biodiversity, which said that more than 5,600 plants and 1,100 mammals could face extinction within the next 30 years. See http://news.independent.co.uk/world/environment/story.jsp?story=297239
  • The Brazilian Justice and Constitution Commission endorsed a bill, which will likely be taken up by Congress this week, which would provide economic incentives to property owners to protect forests in the Atlantic coast region.
  • The upper house of Japan's Diet endorsed the proposed Soil Contamination Prevention Act, which would, effective January 1, 2003, require site assessments before the transfer of property for certain purposes.
  • The Asian Development Bank moved closer toward approving $500 million in grants and loans to Afghanistan over the next two years. The funding would, in part, be used for environmental projects. See http://www.adb.org/Documents/News/2002/nr2002094.asp
  • The International Maritime Organization is developing standards to promote better methods of preventing the accidental transport of invasive species through ships' ballast water.
  • The World Ecotourism Summit was held in Canada. See http://www.ecotourism2002.org/
  • The final report examining the May 2000 contamination of Walkerton, Ontario's water supply was issued. It called for a "new provincial policy on drinking water" that would "provide for strict enforcement of drinking water regulations" and "apply equally to all operating agencies." See http://www.attorneygeneral.jus.gov.on.ca/html/cad/walkertondocs.htm
  • The World Wide Fund for Nature called upon the Rassemblement Congolais pour la Democratie rebels in the Democratic Republic of the Congo to stop encouraging displaced persons from settling in the Virunga National Park.
  • An expert panel working through the Basel Convention on the Transboundary Movement of Hazardous Wastes and Their Disposal finalized a set of guidelines to promote environmentally sound recycling of used lead-acid batteries. See http://www.un.org/apps/news/story.asp?NewsID=3782&Cr=hazard&Cr1=waste

CLIMATE CHANGE

  • Rajendra Pachauri, the new head of the Intergovernmental Panel on Climate Change, rejected the notion that he is supported by the oil and automotive industries. He told the BBC that "if you go back to the record, I have been very critical of some elements of the oil industry." He also said that "everybody does realize that perhaps the Kyoto Protocol is not a perfect agreement, but it's a step forward. It's better to have it than not to have it." Regarding the Bush Administration's decision not to ratify the treaty, Pachauri said "it's ultimately civil society in the U.S. that is going to determine what needs tobe done. We haven't heard the last word on that. . . . I think, by and large, the public in the U.S. now certainly believes that there is climate change taking place."
  • Japan's Environment Minister, Hiroshi Oki, said the Cabinet would ratify the Protocol on June 4. See http://www.japantimes.co.jp/cgi-bin/getarticle.pl5?nn20020525b2.htm and http://www.asahi.com/english/politics/K2002052300876.html
  • EU environment ministers agreed to a June deadline for member ratification. Norway and Denmark ratified the Protocol. In addition, ministers agreed to achieve 35% of the Protocol's carbon dioxide reduction goal within the next three years, cutting between 120 and 178 tons of emissions.
  • Vladimir Grachev, head of the environment committee of Russia's Duma, said that Russian ratification before 2003 is unlikely. See http://www.yomiuri.co.jp/newse/20020522wo42.htm
  • New Zealand's government filed Kyoto ratification legislation in the Parliament.
  • Centennial Coal, an Australian mining company, agreed to sell carbon credits to a Japanese utility. See http://abc.net.au/news/newsitems/s567296.htm
  • Some western Canadian energy companies spoke out in favor of Kyoto ratification. See http://www.canada.com/edmonton/story.asp?id={AA417E36-2FEB-4B77-90DA-FE0D5D709E97}
  • Alberta's proposed alternative approach--cutting the growth of emissions in half by 2020--was ignored at a Charlottetown planning meeting. Alberta's Environment Minister, Lorne Taylor, said that "quite frankly, in public [David Anderson, the federal Environment Minister] said one thing in Calgary . . . and inside the meeting he flat out said they are not willing to have any other options as part of a national discussion." Taylor said the province would take the matter to the Canadian Supreme Court if necessary.
  • A series of 14 federal consultation meetings throughout Canada begins June 6. See http://www.nationalpost.com/search/story.html?f=/stories/20020529/377554.html&qs=kyoto
  • Alberta Premier Ralph Klein is lobbying other provinces, particularly western provincial leaders (who will meet this week). See http://www.nationalpost.com/search/story.html?f=/stories/20020523/312353.html&qs=emissions%20trading
  • Anderson said he would support federal government financial assistance to provinces to promote emission reduction technologies. See http://www.nationalpost.com/search/story.html?f=/stories/20020521/287385.html&qs=kyoto
  • He also insisted that the federal government could implement Kyoto without provincial support or approval. See http://www.canada.com/hamilton/news/story.asp?id={4D1EDEF6-8E1D-4881-B7B6-50F8F612DABA}
  • The Pembina Institute for Appropriate Development, a Canadian organization, issued a report that concludes that Canada is "at risk of lagging even further behind" the United States in greenhouse gas emission reductions. The report also notes that "the U.S. is ahead on policies to increase the share of renewable energy. Thirteen states have renewable energy portfolio standards requiring electricity companies to generate a portion of their supply from clean sources such as wind. BC Hydro and Hydro Quebec have modest requirements to increase electricity from low-impact renewable sources but Ontario and Alberta have none." And "while the U.S. population is nine times larger than Canada’s, it has 20 times the installed wind energy capacity. Canada’s support for public transit is very weak compared to the U.S.’s. Capital investment in
    Canada was just under $1 billion CAN in 2000 while New York State and the federal government spend $2 billion U.S. in the New York City area alone." See http://www.pembina.org/publications_item.asp?id=129
  • The Institute also criticized Alberta's plan. See http://www.pembina.org/newsitem.asp?newsid=42&section=media

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

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