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Weekly Update Volume 32, Issue 20

07/15/2002

LITIGATION

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

CAA, SIPs, OZONE:

The D.C. Circuit vacated EPA's approval of the revised ozone SIPs for the Washington, D.C., Metropolitan Area, made up of the District of Columbia, portions of Maryland, and portions of Virginia. The district and the two states submitted three SIPs for the Washington Metropolitan area, but the SIPs did not provide for attainment by the CAA's November 15, 1999, deadline, did not propose any reasonably available control measures (RACM), and did not provide for annual rates of progress after 1999. EPA approved the SIPs and extended the attainment deadline to 2005 due to the downwind effects of ozone on the area's attainment, and an environmental group challenged EPA's approval of the SIPs. The CAA's plain terms precluded EPA's extension of the attainment date in the three SIPs. The CAA provides that serious nonattainment areas such as the Washington Metropolitan Area must meet the November 15, 1999, attainment deadline. The deadline can be extended in certain limited circumstances or when an area is reclassified as severe. However, EPA neither determined if the Washington Metropolitan Area met the limited circumstances nor reclassified the area as severe. Although the area's nonattainment might be due to downwind ozone, the CAA sets out a specific deadline extension for nonattainement due to downwind emissions, which the Washington Metropolitan Area does not meet and other downwind ozone extensions cannot be inferred from the CAA. The extension of the Washington Metropolitan Area's attainment deadline also does not fall within an exception to a literal reading of the statute, must not be accepted to give effect to the congressional intent not to punish downwind states affected by ozone transport, and is not compelled by circuit precedent. Further, CAA §172(c)(1) requires a SIP to provide for RACM measures as expeditiously as possible, but EPA failed to consider whether any particular measures in the SIPs fell within the Agency's definition of RACM. This omission renders EPA's decision to treat certain measures within the SIPs as RACM arbitrary and capricious. Moreover, CAA §182(c)(2)(B) provides that a SIP for a serious nonattainment area must reduce emissions of VOCs by at least 3% of baseline emissions each year, but the SIPs provided for no reductions after 1999. EPA had no authority to approve the SIPs without rates of progress for the years after 1999. In addition, EPA lacked authority to approve the SIPs because the plans lacked contingency measures if the area fails to meet further progress, and such measures are required by CAA §172(c)(9). Sierra Club v. Environmental Protection Agency, Nos. 01-1070, -1158 (D.C. Cir. July 2, 2002) (8 pp.).

CAA, HAZARDOUS AIR POLLUTANTS (HAPs), DELISTING:

The D.C. Circuit denied an industry association's petition to review EPA's denial of the association's CAA §112(b)(3) petition to delete methanol from the CAA list of HAPs. The association's petition to delist methanol claimed that the highest predicted 24-hour average concentration of methanol from known sources is less than what it asserted is the safe exposure level (SEL) for methanol. However, EPA's explanation of its reasons for denying the delisting petition satisfies the CAA standard for denying a delisting. EPA did not misinterpret the CAA §112(b)(3) standard for delisting a substance. The statutory language clearly supports the EPA requirement that the petitioner demonstrate that the available data support an affirmative decision that the substance is not reasonably anticipated to result in adverse effects to human health or the environment. Moreover, EPA's interpretation that it will not remove a substance from the list of HAPs based merely on the inability to conclude that emissions of the substance will cause adverse effects on human health or the environment is entitled to Chevron deference. Additionally, EPA's technical calculations of the SEL for methanol are entitled to deference and are not arbitrary and capricious. Further, EPA's choice of SEL methodology different than that used by the association was not arbitrary. EPA has long advocated its methodology as superior to that used by the association, and private researchers have acknowledged the superiority of the method used by the Agency. Similarly, EPA's choice of a confidence level for the methodology it used is entitled to deference, especially considering contrary expert testimony on the issue. In addition, EPA reasonably attributed adverse health effects observed in a certain methanol study to methanol exposure. American Forest & Paper Ass'n v. Environmental Protection Agency, No. 01-1296 (D.C. Cir. June 28, 2002) (9 pp.).

CEMENT FUMES INHALATION, REACTIVE AIRWAYS DYSFUNCTION SYNDROME (RADS), DAMAGES:

The Eighth Circuit approved a district court award of damages to an individual who was diagnosed with RADS after inhaling cement fumes. The expert testimony offered by the individual was sufficient for a reasonable jury to find that the individual's exposure to organic solvents in the cement was capable of causing RADS and that the exposure to the solvents did, in fact, cause his illness. To prove exposure levels, a plaintiff need not produce a mathematically precise table equating levels of exposure with levels of harm, rather a plaintiff need only make a threshold showing that he or she was exposed to toxic levels known to cause the type of injuries he or she suffered, which was the case here. Additionally, the individual adequately proved a violation of the Federal Hazardous Substances Act (FHSA). There was a question of fact for the jury about whether the cement can's warning label met the requirements of the FHSA, and because the evidence about the harmful effects of the cement called into question whether the label's statements about principal hazards, precautionary measures, or instructions for handling were adequate. The label did not make clear that inhalation of the vapors is harmful, state handling instructions, or specify any precautionary measures regarding inhalation of fumes from the cement. Mattis v. Carlon Electrical Products, Nos. 01-2246, -2450 (8th Cir. July 10, 2002) (11 pp.).

CAA, HIGHWAY IMPROVEMENT PROJECT, INTERVENTION:

The Tenth Circuit reversed a district court holding that a trade association lacked standing to intervene in an environmental group's suit against the U.S. government challenging the government's approval of a highway improvement plan. The district court incorrectly concluded that the trade association lacked standing to assert its members' rights. The grounds set forth by the trade association for intervention outline specific economic interests; the association's membership includes transportation, planning, and engineering officials who have experience with, and have contributed to, the transportation plans at issue here; and the association's members depend on the transportation system for commuting, recreation, delivering materials and equipment, and conducting their business. Additionally, the case at issue may impair or impede the association's ability to protect its members' interests. Further, the interests of the association are not adequately represented by the existing parties. Utahns For Better Transportation v. United States Department of Transportation, No. 01-4117 (10th Cir. July 5, 200) (6 pp.).

REAL PROPERTY, EASEMENTS, RESTRICTIVE COVENANTS:

The Third Circuit affirmed in part and reversed in part a district court decision that an easement on beachfront property in the Virgin Islands runs to the beach's vegetation berm and not 50 feet inland. Originally, the property at issue was one large estate that was apportioned to six heirs of the original property owners. Some of the six heirs later sold their property to a developer. An association of property owners that had acquired parcels of the original estate brought suit seeking, among other issues, a declaration that the easement across the beachfront property ran 50 feet inland and not to the vegetation berm. The district court held that the easement ran to the vegetation berm, and the property association and some individual property owners appealed. A 1975 district court decision established the original boundaries of the properties at issue, including the initial size of the beachfront easements. That opinion referred to the Virgin Islands' policy of retaining access to beachfront property, and the local law clearly defines public shoreline as the shorter of 50 feet inland or the boundary of natural vegetation, such as the berm line. Moreover, the 1975 opinion explicitly ruled that the easement ran to the berm line. Thus, property owners that received their property directly from one of the original six heirs of the property are subject to an easement to the berm line. However, 2 of the properties are subject to protective covenants in their deeds that subject the properties to a 50 foot beachfront easement. The restrictions in these deeds are valid and thus apply. In addition, the district court properly exercised subject matter jurisdiction over the property association's suit. Peter Bay Homeowners Ass'n v. Stillman, Nos. 01-3726 et al. (3d Cir. June 27, 2002) (22 pp.).

CERCLA, ARRANGER LIABILITY, SOVEREIGN IMMUNITY, ACT OF WAR:

The Ninth Circuit affirmed in part and reversed in part a district court decision that found the U.S. government and oil companies liable under CERCLA for dumping acid sludge from the production of aviation gas during World War II and that allocated the response costs for cleanup of the acid sludge. The government argued that the district court erred in holding that CERCLA §120(a)(1) waives sovereign immunity, that it was not liable as an arranger of the non-benzol waste, and that it was not liable for 100% of the response costs at the site. The oil companies argued that the district court erred in rejecting its claim that they were not liable under the CERCLA §107(b)(2) "act of war" defense. CERCLA §120(a)(1) waives the government's sovereign immunity. The U.S. Supreme Court has ruled such, CERCLA §120 does not apply solely to federal facilities, and §120 is not limited to cases where the government has taken nongovernmental activities. However, the government is not liable as an arranger of non-benzol waste. Under a direct arranger theory, the government did not directly participate in the arrangements for waste disposal. Similarly, the government is not liable as an arranger under a broader theory of sufficient control over the process that created the waste. The broad theory of arranger liability applies where the potentially responsible party is the source of the pollution or actually managed its disposal. Here, the government was not the source of the pollution and although it had the authority to control the disposal of the acid sludge, it did not do so. Thus, the United States is not responsible for the cleanup costs for the non-benzol waste. However, the government conceded liability as an arranger of the benzol waste, the district court has the discretion to allocate response costs among the parties based on equitable factors, and the equitable factors relied on by the district court support an allocation to the government of 100% of the response costs for the benzol waste. In addition, the "act of war" defense is not available to the companies because any action by the government under the War Powers Clause of the U.S. Constitution, such as requiring increased aviation gas production, does not constitute an "act of war," and even if it did the companies did not show that the disposal of the acid sludge was caused solely by an act of war as is required by CERCLA §107(b)(2). United States v. Shell Oil Co., No. 00-55027, -55077 (9th Cir. June 28, 2002) (31 pp.).

ESA, INCIDENTAL TAKE PERMIT, NOTICE:

The D.C. Circuit held that the FWS violated the ESA by failing to make available for public comment critical information in connection with a developer's incidental take permit application and by failing to make a statutorily mandated finding that the developer's plan would minimize the negative impact on the endangered Delmarva fox squirrel. As part of a settlement agreement with an environmental group that challenged the FWS' failure to require an incidental take permit for the developer's proposed construction, the FWS agreed to require an incidental take permit and to provide the group with a copy of the developer's habitat conservation plan, incidental take permit, and NEPA documents. During the comment period on the incidental take permit, the FWS sent the documents, but omitted a map of the developer's proposed 31-acre mitigation site. The group sought all documents related to the proposed development, but the FWS withheld the map. The FWS then issued the incidental take permit, and the group sued alleging ESA violations. The FWS violated ESA §10 by failing to make the map of the off-site mitigation area available during the comment period. ESA §10(c) expressly provides that the information FWS receives as part of an incidental take permit shall be available to the public as a matter of public record. ESA §10(a), which provides for meaningful public comment, also required the FWS to make the map available. The group could not meaningfully comment on the value of the proposed mitigation site. Moreover, disclosure of the map was required by the previous settlement agreement entered into by the group and the FWS. Further, the FWS' failure to make the map available to the public was not harmless error. The map was essential to the group's ability to meaningfully comment on the incidental take permit, and the group showed at least three specific reasons how the FWS' failure to provide the map prejudiced it. The fact that the FWS might have known about the issues that the group would have commented on, and the fact that the agency would not have changed its decision considering these comments does not render its ESA violation harmless. In addition, the FWS violated ESA §10(a)(2)(B) by failing to find that the developer would minimize the impacts of the taking to the maximum extent practicable. Before issuing the incidental take permit, the FWS was obliged to find independently that no practicable alternative to the development plan would minimize the taking of fox squirrels. The FWS did not independently make such a finding. In fact, the FWS found in its EA that there was an alternative that would reduce the likelihood of taking fox squirrels, but the developer rejected the alternative. Thus, given the FWS' finding in the EA, the service could not have issued the permit consistent with ESA §10(a) without making a finding that the reduced impact alternative was impracticable. However, no such finding was made. Therefore, issuance of the permit violated the ESA, and the case is remanded to the FWS for further proceedings. Gerber v. Norton, No. 01-5247 (D.C. Cir. July 2, 2002) (13 pp.).

ESA, NEPA, FEDERAL ACTIONS:

The Eleventh Circuit affirmed a district court holding that the U.S. Army Corps of Engineers did not violate ESA §7 or NEPA when it issued a dredge and fill permit for the construction of a Florida highway. In 1993, the FWS issued a biological assessment (BA) of the proposed highway site on the eastern indigo snake, and, subsequently, the Corps issued a final EIS for the selection of the highway site. In 1996, the state transportation department submitted applications for the permits necessary to begin construction. Subsequently, the Corps initiated formal consultation with the FWS, pursuant to ESA §7, regarding the highway construction's potential impact on endangered species. The FWS found that only the eastern indigo snake would be impacted, but determined that the 1993 BA's compensation plan was sufficient. In 1997, the Corps prepared an EA of the four highway segments, issued a FONSI for each, and, thereafter, issued a dredge and fill permit to the state transportation agency. In 1999, an environmental group sought to enjoin the highway construction alleging, among other things, that the Corps was arbitrary and capricious in not preparing a BA as part of the dredge and fill permit process. However, the record established that the Corps fully complied with NEPA and the ESA for a major federal project. It prepared an EIS for selection of the project, it remained involved in the planning process, and incorporated these previous studies into its analysis of the permits. Thus, the Corps had before it a full picture of the environmental consequence of the parkway, and given the mitigation plan for the eastern indigo snake and alterations, did not act arbitrarily and capriciously in determining that a BA or a supplemental EIS was not necessary for the issuance of the permits. Moreover, a change in the highway's alignment did not create a substantially new project requiring a new BA. In addition, the Corps did not act arbitrarily and capriciously in relying on the FWS BA, in consulting the FWS, or in adopting the action area identified by the Federal Highway Administration. Sierra Club v. U.S. Army Corps of Engineers, No. 01-11179 (11th Cir. June 25, 2002) (12 pp.) (Counsel for the government included Tamara Rountree, Mark A. Brown, and Ralph Lee of the U.S. Department of Justice in Washington DC).

NEPA, EIS, "MAJOR FEDERAL ACTION":

The Ninth Circuit affirmed a district court decision that the U.S. Geological Survey's (USGS') and HUD's participation in a Hawaii Department of Water Supply (DWS) transmission project did not constitute a major federal action that triggered the NEPA requirement to prepare an EIS. The USGS participated in and partially funded a series of preliminary studies of the DWS' project. HUD provided Hawaii County the application material necessary to apply for a special purpose grant, the funding of which Congress had allocated to the county, in part, to conduct an EIS for a water resource system for the community of Kohala. Although significant federal funding can turn a local project into a major federal action, the sum total of all federal funding offered to the DWS project was $1.3 million, which is less than 2% of the estimated total project cost of $80 million. The state and DWS have so far spent approximately $3.4 million on the project and the remainder will be funded by state and county issued bonds. Moreover, the USGS and HUD also lacked the necessary degree of decisionmaking power, authority, or control over the project to render it a major federal action. Although the USGS played an advisory role in planning the project, it was not placed in a decisionmaking role. Likewise, HUD's provision of advice and information to the DWS regarding the special purpose grant did not constitute discretionary involvement or control over the entire project. In addition, HUD's regulations do not currently require the preparation of an EIS for the project. Although the regulations require an EA or EIS for projects funded with special purpose grants, projects consisting of environmental studies are exempt. An environmental group argued that the HUD requirement applied to the entire DWS project and not just to the project authorized under the special purpose grant. However, the HUD special purpose grant was clearly designated for use in the preparation of an EIS, and the other preliminary activities for the entire project would have no real impact on the environment and are exempt from NEPA. Ka Makani 'O Kohala Ohana, Inc. v. Water Supply, Department of, County of Hawaii, No. 00-17473 (9th Cir. July 1, 2002) (12 pp.).

FEDERAL TORT CLAIMS ACT (FTCA), DISCRETIONARY FUNCTION EXCEPTION, IRRIGATION SYSTEM MAINTENANCE:

The Ninth Circuit held that the Bureau of Indian Affair's (BIA's) decision to spend limited funds in ways that allowed an irrigation system to fall into disrepair and cause damage to landowners' property, is not protected by the discretionary function exception to the FTCA. Downstream from the landowners' ranch, and relying on the same river for water, is another ranch purchased by the United States in 1937 and held in trust for a Native American tribe. The property owners alleged that since 1983 almost no maintenance work has been performed on the irrigation system of the ranch owned by the United States. In 1989, the United States contracted with the Native American tribe for whom the ranch is held in trust for the tribe to maintain the ranch's irrigation system. By 1998, the negligent lack of maintenance of the irrigation system caused water and sediment from the river to back up onto and flood the landowner's property, resulting in damages from lost crops and sediment removal. After exhausting administrative remedies, the landowners brought suit under the FTCA in district court. The district court incorrectly held that the BIA's failure to maintain the ranch's irrigation system was the result of a policy decision involving allocation of scarce BIA resources and, thus, fell within the discretionary function exception to the FTCA. The BIA did not deviate from any required action or process. No federal statue, regulation, or policy specifically describes a course of action to which the BIA did not adhere. The BIA's decision, however, was not susceptible to a policy analysis grounded in social, economic, or political concerns. The agency's decision to forego, for fiscal reasons, the routine maintenance of its property - - maintenance that would be expected of any other landowner - - is not the kind of policy decision that the discretionary function exception protects. The BIA was under no obligation to acquire the ranch, but once it did, it also acquired the obligation to keep its irrigation system from causing harm to others to the same extent that a private landowner must. Because the BIA advances no other reason for its actions or inactions aside from the choice to spend its limited funds in other ways, the discretionary function exception does not apply. To apply the discretionary function exception to shield the BIA's alleged negligence would unfairly allocate the resulting harm to the landowners. O'Toole v. United States, No. 01-15310 (9th Cir. July 10, 2002) (13 pp.).

CWA, TMDLs, CONSENT DECREES, MODIFICATION:

The Eleventh Circuit held that a district court abused its discretion by modifying a consent decree between EPA and an environmental group to include a requirement that EPA develop TMDL implementation plans for the state of Georgia. The group sued EPA to compel the Agency to develop TMDLs for the state, and after a district court found that EPA had a duty to establish and implement the state's TMDLs, the parties entered a consent decree under which EPA agreed to establish the state's TMDLs. Subsequently, EPA established the TMDLs, but did not prepare implementation plans for the standards. The group moved to reopen the decree and to compel EPA to prepare the implementation plans or to ensure that the state did. Before the district court could rule, the state issued the implementation plans, but the group claimed that the plans were inadequate. The district court then refused to dismiss the suit against EPA and held that the consent decree required EPA to develop the implementation plans and, thus, to ensure the adequacy of the state-prepared plans. However, the district court's order resulted in a modification of the consent decree by changing the legal relationship of the parties under the consent decree when it required EPA to develop the implementation plans when neither the CWA, its regulations, nor the consent decree required the Agency to do so. Such a modification is within a district court's discretion if there was a significant change in either factual conditions or in law and the proposed modification must be suitably tailored to the changed circumstances. Here, there has been no change in either the law or the factual circumstances. The CWA statutory and regulatory scheme for TMDLs has not changed, and the circumstances of the state's failure to adequately implement TMDLs are no different than the factual circumstances when the group first sued EPA. Thus, nothing has changed to make the provisions of the original consent decree ineffective, and it is still capable of accomplishing what the parties set out to achieve with the decree: the establishment of TMDLs. In addition, the modification of the consent decree provided the Eleventh Circuit with appellate jurisdiction. Sierra Club v. Meiburg, No. 01-14587 (11th Cir. July 2, 2002) (33 pp.).

CWA, MARINE SALVAGE, SALVAGE LIENS:

The Fifth Circuit held that the U.S. Coast Guard cannot assert a marine salvage claim against a ship that it repeatedly provided safety measures for while docked and effectively abandoned by its owner. When the owner of the ship failed to ensure the safety of the docked ship, the Coast Guard provided tug assistance. After the ship was damaged in an allision, the Coast Guard transferred the boat to another port in order to reduce the potential danger to public safety posed by the ship. While in transfer, the ship's owner sold it to a salvage company. After the ship was auctioned, the Coast Guard, the salvage company, and the port where the ship had been docked asserted salvage claims against the ship. The salvage company was awarded one of its liens and the Coast Guard was awarded the remainder of the funds available. However, a successful salvage claim can only be asserted if the entity asserting the claim acted voluntarily and not as part of an existing duty to a special contract. The district court held that the Coast Guard acted voluntarily in providing safety measures for the ship, but the district court based its analysis in part on a misreading of dicta within In re American Oil Co., 417 F.2d 164 (1969), which had been repeatedly misconstrued as allowing the Coast Guard to assert salvage claims. The relevant passage relied on by the district court was dictum and provided no jurisprudential support for the district court's holding. Moreover, the Coast Guard acted pursuant to CWA §311, which requires the Coast Guard to respond to and minimize threats of discharges of oil and hazardous substances to the navigable waters of the United States. Thus, in responding to an oil discharge threat posed by the ship, the Coast Guard acted pursuant to a statutory duty and did not act voluntarily. Further, if the Coast Guard had been acting as salvors, it would have been required to notify the ship owner before acting in order to provide the owner with the opportunity to deny the salvage claim. The Coast Guard never specifically announced to the ship owner the actions it planned to take. United States v. Ex-U.S.S. Cabot/Dedalo, No. 00-41358 (5th Cir. July 1, 2002) (12 pp.).

PREEMPTION, PILOTAGE, CALCASIEU SHIP CHANNEL (CSC), STATE REGULATION:

The Fifth Circuit held that federal law does not preempt the state of Louisiana's authority to regulate pilotage on the outer bar of the CSC. The CSC is a navigation project that extends from the Port of St. Charles to the Gulf of Mexico, 33 miles from the state coastline and 30 miles from the state's seaward boundary. River pilots commissioned by the state to serve the Port of Lake Charles and the CSC sought a declratory judgment that the state could not regulate pilotage on the CSC beyond the state's three-mile seaward boundary. The Submerged Lands Act, specifically 42 U.S.C. §1312, does not implicitly limit state authority to regulate pilotage to bodies of water within state territorial boundaries. Section 1312 addresses only who retains title to submerged lands both within and beyond the three-mile line, with particular reference to natural resource ownership. Further, 46 U.S.C. §8501, which states that pilots in bays, rivers, and harbors of the United States shall be regulated only in conformity with the laws of the states, does not limit state authority over the regulation of pilotage to the bodies of waters referenced in the statute. The U.S. Congress has historically left the regulation of pilotage largely in the control of states as evidenced by the Lighthouse Act of 1789, which Congress has reenacted and recodified as 46 U.S.C. §8501, and which provides that all pilots in bays, inlets, rivers, harbors, and ports of the United States shall be regulated in conformity with the laws of the states. Thus, the pilots' contention that §8501 allows state regulation of bays, rivers, harbors, and ports, but not canals is without merit. Moreover, The state exercise of authority over pilotage on the outer bar of the CSC does not conflict with federal interest. The U.S. Supreme Court has long upheld state authority to enact laws regulating pilotage where Congress has declined to act, and the state has legitimate interest in regulating pilotage over the outer bar of the CSC in order to protect safety of ships traveling the CSC. In addition, the district court properly exercised federal question jurisdiction over the matter because the pilots implicitly sought injunctive relief based on federal statutes. Gillis v. Louisiana, No. 01-31251 (5th Cir. July 2, 2002) (6 pp.).

PREEMPTION, COUNTY ORDINANCES, SWINE FARMS:

The North Carolina Supreme Court affirmed an appellate court's holding that a county ordinance and health board rules attempting to regulate swine farming are preempted by state law, but reversed the appellate court's holding approving a zoning ordinance that required swine farm operators to obtain a permit through compliance with the invalid ordinance. Contrary to the county's argument, the state assembly does not have to provide an express statement of intent to preempt a field, but can instead create a regulatory scheme that is so complete in covering the field that it is clear that any regulation on the county level would be contrary to the statewide regulatory purpose, which is the case here. The purpose statements and expressions of intent in the state statutes make it clear that the purpose for creating the statutes was to regulate animal waste at the state level, and that allowing individual counties to create particularized regulations for swine farms would upset the overall balance reached by the state legislature for the entire state. Additionally, the state statutes are so comprehensive in scope that the state legislature must have intended that they comprise a complete and integrated regulatory scheme on a statewide basis, thus leaving no room for further local regulation. Further, the health board rules are incompatible with state law in that they purport to regulate a field in which the state has provided a regulatory scheme to the exclusion of local regulation. Although a health board is allowed to make rules that are more strict than state standards when they are enacted to protect the public health, the health board here failed to provide any rationale or basis for making the restrictions more rigorous than those applicable to and followed by the rest of the state. Moreover, the appellate court erred in approving a zoning ordinance that required swine farm operators to obtain a permit through compliance with the invalid ordinance. Craig v. County of Chatham, No. 270PA01 (N.C. June 28, 2002) (21 pp.).

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

THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register.

AIR

  • EPA promulgated amendments to the "generic" maximum achievable control technology standards to add NESHAP for four additional source categories: cyanide chemicals manufacturing, carbon black production, ethylene production, and spandex production. 67 FR 46257 (7/12/02).
  • EPA is taking direct final action to amend the "generic" maximum achievable control technology standards to clarify the agency's intent concerning dry spinning spandex production processes. 67 FR 46289 (7/12/02).
  • EPA proposed NESHAPs for fabric and other textile coating, printing, slashing, dyeing, and finishing operations, pursuant to section CAA §112(d), and also revised the title of the source category from the Printing, Coating and Dyeing of Fabrics source category to the Printing, Coating, and Dyeing of Fabrics and Other Textiles source category in order to clarify the applicability of the proposed NESHAP to HAP-emitting operations performed on textile substrates including, but not limited to, fabric. 67 FR 46027 (7/11/02).
  • EPA promulgated NESHAPs for the Polyvinyl Chloride and Copolymers Production source category. 67 FR 45885 (7/10/02).
  • EPA deleted Michigan's attainment status designations (attainment, unclassifiable, and nonattainment) affected by the original NAAQS for particulate matter measured as total suspended particulate (TSP). 67 FR 45635 (7/10/02).
  • EPA deleted Minnesota's attainment status designations (attainment, unclassifiable, and nonattainment) affected by the original NAAQS for particulate matter measured as TSP. 67 FR 45637 (7/10/02).
  • EPA finalized NESHAPs for new and existing sources at rubber tire manufacturing facilities. 67 FR 45587 (7/9/02).
  • EPA proposed not to regulate chlorine and hydrochloric acid emissions for the chlorine production source category. 67 FR 44713 (7/3/02).

  • EPA proposed NESHAPs for mercury cell chlor-alkali plants. 67 FR 44671 (7/3/02).

  • EPA withdrew portions of its amendments to the national emission standards for the portland cement manufacturing industry that were promulgated on April 5, 2002, due to adverse comments. 67 FR 44371 (7/2/02).
  • EPA announced that it seeks comment on the databases the Agency plans to use to propose NESHAPs for hazardous waste burning combustors. 67 FR 44452 (7/2/02).
  • EPA determined that the Fairbanks, Alaska, carbon monoxide (CO) nonattainment area attained the NAAQS for CO. 67 FR 44769 (7/5/02).

COASTAL ZONE

  • The NOAA Office of Ocean and Coastal Resource Management announced its intent to evaluate the performance of the Michigan Coastal Management Program and the Alaska Coastal Management Program. 67 FR 45482 (7/9/02).
  • On April 3, 2000, the Secretary of Commerce received a notice of appeal from Collier Resources Company pursuant to CZMA §307(c)(3)(A) & (B) regarding the state of Florida's objection to the company's consistency certification for a National Park Service approval of a Landing Strip Plan of Operations to conduct geophysical exploration of a portion of their mineral estate beneath the Big Cypress National Preserve. 67 FR 45095 (7/8/02).

ENERGY

  • The Bonneville Power Administration announced its intention to prepare a joint NEPA/State Environmental Policy Act EIS in cooperation with the State of Washington Energy Facility Site Evaluation Council for a proposed new cogeneration plant and its electrical interconnection with the Federal Columbia River Transmission System. 67 FR 45961 (7/11/02).
  • FERC prepared an EA and issued a FONSI for the natural gas pipeline facilities proposed by SCG Pipeline, Inc. (SCG) in Chatham and Effingham Counties, Georgia, and Jasper County, South Carolina. 67 FR 45970 (7/11/02).
  • After further review of stabilization costs, schedules, and program requirements, DOE decided to implement the Processing and Storage for Vitrification in the Defense Waste Processing Facility alternative as well as the Process to Oxide alternative previously selected for the management of the H-Canyon plutonium solutions at the Savannah River Site in Aiken, South Carolina. 67 FR 45710 (7/10/02).
  • The Rural Utilities Service released for public review the final EIS for the Southern Intertie Project, which will construct a 138 kilovolt (kV) transmission line between the Kenai Peninsula and Anchorage, Alaska. 67 FR 45701 (7/10/02).
  • DOE's National Nuclear Security Administration amended the ROD for the EIS for the conveyance and transfer of certain land tracts administered by DOE and located at Los Alamos National Laboratory, Los Alamos and Santa Fe Counties, New Mexico, to reflect changes in the need to retain certain portions of land tracts withheld earlier due to potential national security mission requirements for health and safety buffer areas relating to on-going and future operations. 67 FR 45495 (7/9/02).
  • The Lake Erie Link Limited Liability Company has applied for a Presidential permit to construct, operate, maintain, and connect an electric transmission line across the U.S. border with Canada. 67 FR 45497 (7/9/02).
  • FERC will prepare an EA that will discuss the environmental impacts of the National Fuel Replacement/Abandonment Project involving construction and operation of facilities by the National Fuel Gas Supply Corporation in Allegany County, New York. 67 FR 45110 (7/8/02).

HAZARDOUS WASTE

  • EPA proposed to use the Delisting Risk Assessment Software in the evaluation of a delisting petition to evaluate the impact of the petitioned waste on human health and the environment. 67 FR 46139 (7/12/02).
  • EPA took direct final action to amend the location restriction requirements in the criteria for municipal solid waste landfills in order to incorporate new landfill siting requirements enacted in the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century. 67 FR 45915 (7/11/02).
  • In accordance with CERCLA §122(i), EPA gave notice of a proposed administrative settlement for recovery of past response costs concerning the Angelillo Property Superfund Site site in Southington, Connecticut, under which the settling parties agreed to pay $626,000 to the Hazardous Substance Superfund. 67 FR 45978 (7/11/02).
  • EPA granted to Cytec Industries, Inc., an exemption to the land disposal restrictions under the 1984 Hazardous and Solid Waste Amendments to RCRA for five Class I injection wells located at Westwego, Louisiana. 67 FR 45719 (7/10/02).
  • Under CERCLA §§104, 106(a), 107, and 122, Atlantic Steel and NL Industries, Inc., entered into an Administrative Order on Consent with EPA, to perform response activities at the Northside Drive Superfund Site in Atlanta, Georgia. 67 FR 45726 (7/10/02).
  • Under CERCLA §122, Industrial Container Services, LLC, and Industrial Container Services--FL, LLC, entered into a prospective purchaser agreement with EPA, whereby the companies, in exchange for a U.S. covenant not to sue, agreed to pay EPA the fair market value of the property that is the subject of the prospective purchaser agreement and further agreed to establish and maintain financial security in order to guarantee performance of the work set forth in the September 17, 2001, remedial design/remedial action consent decree for the Zellwood Groundwater Superfund Site in Zellwood, Orange County, Florida. 67 FR 45727 (7/10/02).
  • EPA corrected errors and removed obsolete or redundant language in regulations regarding notification requirements for releases of hazardous substances under CERCLA. 67 FR 45314 (7/9/02).
  • EPA approved revisions to Idaho's hazardous waste program under RCRA. 67 FR 44069 (7/1/02).

MINING

  • BLM announced it will direct the preparation of a third-party Supplemental EIS to analyze a proposed new mine expansion called the Millennium project that would disturb approximately 1,394 acres of public and private lands in Humboldt County, Nevada. 67 FR 46206 (7/12/02).
  • DOI notified the public of its submission of an information collection request to OMB to renew approval of the form MMS-128 for Semiannual Well Test Report. 67 FR 45144 (7/8/02).

NATIONAL FORESTS

  • The Forest Service will prepare an EIS on a proposal to implement multiple resource management actions within the Prairie Project Area as directed by the Black Hills National Forest Land and Resource Management Plan. 67 FR 46165 (7/12/02).
  • The Forest Service, Lassen National Forest, Plumas National Forest, and Tahoe National Forest will prepare a supplemental EIS in response to a recent U.S. district court decision in Californians for Alternatives to Toxics v. Michael Dombeck, No. Civ. S-00-605 LKK/PAN, to address maintenance of defensible fuels profile zones in the Herger-Feinstein Quincy Library Forest Recovery Act Pilot Project Area. 67 FR 45699 (7/10/02).
  • The Forest Service will prepare the Lick Timber Sale EIS to reduce fuels, manage forest vegetation, enhance northern Idaho ground squirrel habitat, and manage roads in the Payette National Forest in Idaho. 67 FR 45699 (7/10/02).
  • The Forest Service sought comments from all interested individuals and organizations on an extension of an information collection associated with the Secure Rural Schools and Community Self-Determination Act of 2000, which distributes funds from timber harvesting activities on National Forest System lands to states and counties where such lands are located. 67 FR 45075 (7/8/02).
  • The Forest Service extended to August 31, 2002, the comment period on a Notice of Intent to prepare an EIS and to revise the Green Mountain National Forest Land and Resource Management Plan because of the lack of availability of a supplement of the Notice of Intent. 67 FR 45076 (7/8/02).
  • The Forest Service will prepare an EIS for the Baltimore Vegetative Management Project in the Ottawa National Forest in Michigan to disclose the effects of the numerous use activities, including timber harvest; site preparation for natural and artificial regeneration; tree planting; dispersed parking area improvement and development; trail construction; relocating a portion of an existing snowmobile trail; classification of old growth; maintenance of permanent openings and mowing roads for wildlife habitat; fisheries habitat improvement; expansion of an existing gravel pit; and transportation management that would include road construction, road reconstruction, temporary road construction, road maintenance, road decommissioning and obliteration, and road closure to passenger vehicles. 67 FR 45076 (7/8/02).
  • The Forest Service extended until August 31, 2002, the comment period on its Notice of Intent to prepare an EIS and to revise the Finger Lakes National Forest Land and Resource Management Plan. 67 FR 45076 (7/8/02).

NEPA REVIEW

  • The CEQ formed a NEPA task force composed of representatives from a variety of federal agencies to seek ways to improve and modernize NEPA analyses and documentation and to foster improved coordination among all levels of government and the public. 67 FR 45510 (7/9/02).

RIVERS

  • The U.S. Army Corps of Engineers announced its intent to prepare a Supplemental EIS and Environmental Impact Report to address potential improvements to the existing flood control systems of the American River (Common Features) project located in Sacramento and Sutter Counties. 67 FR 45960 (7/11/02).

TOXIC SUBSTANCES AND PESTICIDES

  • EPA established time-limited tolerances for residues of mesotrione, 2-[4-methylsulfonyl)-2-nitrobenzoyl]-1,3-cyclohexanedione, in or on sweet corn and sweet corn forage and stover. 67 FR 45650 (7/10/02).
  • In response to its granting of an emergency exemption under FIFRA §18 authorizing the use of the pesticide halosulfuron on tomato, EPA established a time-limited tolerance for residues of halosulfuron in or on tomato. 67 FR 45643 (7/10/02).
  • EPA revoked all FIFRA tolerances for the combined residues of the fungicide oxadixyl and its desmethyl metabolite. 67 FR 45639 (7/10/02).

TRANSPORTATION

  • The Federal Transit Administration and the Federal Highway Administration are announcing that all urbanized areas with populations greater than 200,000 as determined by the 2000 Census, are hereby designated as Transportation Management Areas. 67 FR 45173 (7/8/02).

WATER QUALITY

  • EPA announced the availability of a memorandum entitled "Supplemental Allocation of Fiscal Year 2002 Operator Training Grants," which provides national guidance for the allocation of funds used under CWA §104(g)(l). 67 FR 46186 (7/12/02).
  • EPA announced the availability of a memorandum entitled "Allocation of Fiscal Year 2002 Youth and the Environment Training and Employment Program Funds," which provides national guidance for the allocation of funds used under CWA §104(b)(3). 67 FR 46186 (7/12/02).
  • EPA entered into a consent agreement with Dobson Cellular Systems, Inc., and American Cellular Corporation to resolve violations of the CWA, EPCRA, RCRA, the CAA, and their implementing regulations at four facilities where the companies stored diesel oil and chemicals in above ground tanks. 67 FR 45727 (7/10/02).
  • EPA invited public comment on its proposed Policy on Water Quality Trading, a voluntary incentive-based approach to more efficiently protect and restore the nation's waters that would use trading to maintain water quality in unimpaired waters, trading in impaired waters before development of TMDLs, and trading to meet TMDLs. 67 FR 45728 (7/10/02).
  • EPA issued general NPDES permits for facilities or operations that generate, treat, and/or use/dispose of sewage sludge by means of land application, landfill, and surface disposal in Colorado, Montana, North Dakota, and Wyoming. 67 FR 44460 (7/2/02).
  • EPA designated a new ocean dredged material disposal site in the Atlantic Ocean offshore Wilmington, North Carolina, as an EPA-approved ocean dumping site for the disposal of suitable dredged material. 67 FR 44770 (7/5/02).

WETLANDS

  • FWS and the North American Wetlands Conservation Council, are currently entertaining proposals that request match funding for wetland and wetland-associated upland conservation projects under the Small Grants program. 67 FR 45143 (7/8/02).

WILDLIFE:

  • The National Marine Fisheries Service (NMFS) prohibited directed fishing for Pacific ocean perch in the West Yakutat District of the Gulf of Alaska (GOA). 67 FR 45920 (7/11/02).
  • NMFS prohibited directed fishing for Pacific ocean perch in the Central Regulatory Area of the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the 2002 total allowable catch of Pacific ocean perch in this area. 67 FR 45921 (7/11/02).
  • NMFS proposed a regulation to implement the annual harvest guideline for Pacific mackerel in the exclusive economic zone off the Pacific coast. 67 FR 45952 (7/11/02).
  • The FWS announced the availability of a draft economic analysis for the proposed designation of critical habitat for Deinandra conjugens (Otay tarplant) and provided notice of the reopening of the comment period to allow for all interested parties to submit written comments on the draft economic analysis, and the proposed designation. 67 FR 45696 (7/10/02).
  • The Hawaii Department of Land and Natural Resources, Division of Forestry and Wildlife applied to the FWS for an ESA §10(a)(1)(A) enhancement of survival permit for the protection of habitat for the endangered Hawaiian goose or nene that may occupy or breed on private lands following the reintroduction of nene to Molokai in 2001 through the previously approved "Safe Harbor Agreement for the Reintroduction of the Nene to Puu O Hoku Ranch, Island of Molokai.'' 67 FR 45755 (7/10/02).
  • FWS gave notice that the document titled "Assessment Plan for the Natural Resource Damage Assessment at the St. Louis River Interlake/Duluth Tar Superfund Site, Draft 6/24/02" is available for public review and comment. 67 FR 45756 (7/10/02).
  • The National Marine Fisheries Service corrected an emergency interim rule implementing Steller sea lion protection measures and 2002 harvest specifications for the Alaska groundfish fishery in order to afford Atka mackerel fishery participants an additional opportunity to register for the 2002 B season harvest limit area fishery in the Aleutian Islands subarea. 67 FR 45671 (7/10/02).
  • NMFS prohibited directed fishing for Pacific ocean perch in the Eastern Aleutian District of the Bering Sea and Aleutian Islands management area in order to to prevent exceeding the 2002 total allowable catch of Pacific ocean perch in the area. 67 FR 45673 (7/10/02).
  • FWS announced a second extension of the comment period for public review of the Draft Recovery Plan for Coastal Plants of the Northern San Francisco Peninsula for an additional 60 days. 67 FR 45532 (7/9/02).
  • FWS invited the public to comment on several individual applications to conduct certain activities with endangered species and/or marine mammals. 67 FR 45530 (7/9/02).
  • As required by a June 14, 2001, biological opinion on Atlantic highly migratory species fisheries, NOAA issued a final rule implementing measures for pelagic longline fishing of Atlantic highly migratory species fisheries, including the closing of the northeast district statistical reporting area, restricting the gangion length, and prohibiting vessels from having hooks on board other than corrodible, non-stainless steel hooks. 67 FR 45393 (7/9/02).
  • NMFS announced that the Administrator of the Northeast Region is suspending the haddock daily trip limit for the groundfish fishery. 67 FR 45401 (7/9/02).
  • NMFS is closing directed fishing for Pacific cod by vessels using trawl gear in Bycatch Limitation Zone 1 of the Bering Sea and Aleutian Islands management area in order to prevent exceeding the 2002 bycatch allowance of red king crab specified for the trawl Pacific cod fishery category in Zone 1. 67 FR 45069 (7/8/02).
  • FWS withdrew its proposal to list the southwestern Washington/Columbia River distinct population segment of coastal cutthroat trout as endangered. 67 FR 44933 (7/5/02).

  • FWS determined endangered status for the southern California distinct vertebrate population segment of the mountain yellow-legged frog under the ESA. 67 FR 44382 (7/2/02).

  • FWS determined endangered status for the Ambrosia pumila under the ESA. 67 FR 44372 (7/2/02).

  • FWS designated critical habitat for the Carolina heelsplitter, a freshwater mussel, under the ESA. 67 FR 44501 (7/2/02).

  • NMFS announced that listing the Southern Resident killer whale as threatened or endangered under the ESA is not warranted at this time because these whales do not constitute a species, subspecies, or distinct population segment under the ESA. 67 FR 44133 (7/1/02).

  • NMFS issued an advance notice of proposed rulemaking to designate the eastern North Pacific Southern Resident stock of killer whales as a depleted stock under the Marine Mammal Protection Act. 67 FR 44132 (7/1/02).

DOJ NOTICES OF SETTLEMENT

  • United States v. Betteroads Asphalt Corporation, No. 02-1548(DRD) (D.P.R. Apr. 9, 2002). A settling CWA defendant is enjoined from taking any actions that would discharge dredged or fill material into waters of the United States except in compliance with the provisions of the CWA, is required to pay civil penalties in the amount of $100,000.00, and is required to make an additional donation of $75,000.00 to the Foundation for the Conservation of the Sabanera Pigeon. 67 FR 45763 (7/10/02).
  • Madonna v. United States Army Corps of Engineers, No. CV 01-07515 (C.D. Cal. June 27, 2002). Plaintiff who brought CWA suit against Corps of Engineers is prohibited from discharging any pollutant into waters of the United States on or adjacent to the Froom Ranch and Boysen Ranch Sites in San Luis Obisqo, unless such discharge complies with the provisions of the CWA and its implementing regulations, must create 10.2 acres of wetlands, and must pay $15,000 in civil penalties. 67 FR 45763 (7/10/02).
  • United States v. Madonna, No. CV 02-00092 (C.D. Cal. June 27, 2002). A settling CWA defendant is prohibited from discharging any pollutant into waters of the United States on or adjacent to the Froom Ranch and Boysen Ranch Sites in San Luis Obisqo, unless such discharge complies with the provisions of the CWA and its implementing regulations, must create 10.2 acres of wetlands, and must pay $15,000 in civil penalties. 67 FR 45763 (7/10/02).
  • United States v. Acme Alloys, No. 02-02886 (WHW) (D.N.J. June 6, 2002). Settling CERCLA defendants must pay $460,000 into a special account to pay for response activities at the NL Industries Superfund site in Pedricktown, New Jersey. 67 FR 44877 (7/5/02).
  • United States v. Fort James Operating Co., No. 02-C-0602 (E.D. Wis. June 20, 2002). A settling CERCLA defendant must preserve more than 1,000 acres of wildlife habitat in northeastern Wisconsin, must pay $8.5 million for other restoration projects as compensation for injuries to natural resources caused by widespread PCB contamination at the Fox River/Green Bay site in Wisconsin, and must pay $1.6 million to help offset natural resource damage assessment costs and certain cleanup related response costs incurred by the United States and Wisconsin. 67 FR 44877 (7/5/02).
  • United States v. Borough of Indiana, No. 02-CV-1079 (W.D. Pa. June 17, 2002). A settling CWA defendant must pay a $240,000 civil penalty and must perform injunctive relief in connection with violations at its wastewater treatment plant and sewer collection system in the Borough of Indiana, Pennsylvania. 67 FR 44878 (7/5/02).
  • United States v. Pennsylvania Industrial Development Authority, No. 02-4038 (E.D. Pa. June 24, 2002). A settling CERCLA defendant must pay $5,000 in past U.S. response costs incurred at the Franklin Smelting site in Philadelphia, Pennsylvania. 67 FR 44878 (7/5/02).
  • United States v. Scovill, Inc., No. 3:95CV159 (E.D. Va. June 6, 2002). Under a modified CERCLA consent decree that sought recovery of costs and injunctive relief for the Arrowhead Plating Superfund site in Montross, Virginia, a settling defendant must undertake certain unanticipated work at the site in exchange for a credit against future oversight costs incurred by EPA, the groundwater remedy provisions were changed to meet the requirements of a 2001 record of decision (ROD) amendment, which replaced the pump and treat system selected as the remedy in the original ROD with a permeable reactive subsurface barrier and surface cap, and the representatives of the parties designated to receive formal notices and submissions under the decree were updated. 67 FR 44878 (7/5/02).
  • United States v. South Jersey Clothing Co., No. 96-3166 (JBS) (D.N.J. June 21, 2002). A settling CERCLA defendant must pay $4,285,102 in past and future response costs incurred by New Jersey and the United States at the South Jersey Clothing Company/Garden State Cleaners Superfund sites in Minotola, New Jersey. 67 FR 44879 (7/5/02).

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

THE CONGRESS

COMMITTEE ACTION

  • S.J Res. 34 (Yucca Mountain; high-level radioactive waste) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 107-159, 148 Cong. Rec. S5285 (daily ed. June 10, 2002). The joint resolution 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.
  • S. 1946 (national trails) was reported by the Senate Committee on Energy and Natural Resources. S. Rep. No. 107-203, 148 Cong. Rec. S6361 (daily ed. July 8, 2002). The bill would amend the National Trails System Act to designate the Old Spanish Trail as a National Historic Trail.
  • H.R. 640 (Santa Monica Mountains National Recreation Area) was reported by the Senate Committee on Energy and Natural Resources. S. Rep. No. 107-204, 148 Cong. Rec. S6361 (daily ed. July 8, 2002). The bill would adjust the boundaries of Santa Monica Mountains National Recreation Area.
  • H.R. 3258 (FLPMA) was reported by the House Committee on Resources. H. Rep. No. 107-563, 148 Cong. Rec. H4552 (daily ed. July 11, 2002). The bill would amend FLPMA to clarify the method by which the Secretary of the Interior and the Secretary of Agriculture determine the fair market value of rights-of-way granted, issued, or renewed under such Act to prevent unreasonable increases in certain costs in connection with the deployment of communications and other critical infrastructure.
  • H.R. 4129 (water resources) was reported by the House Committee on Resources. H. Rep. No. 107-554, 148 Cong. Rec. H4349 (daily ed. July 8, 2002). The bill 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, to 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.
  • H.R. 4807 (land acquisition) was reported by the House Committee on Resources. H. Rep. No. 107-562, 148 Cong. Rec. H4497 (daily ed. July 10, 2002). The bill 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.
  • H.R. 4870 (Mount Naomi Wilderness Area) was reported by the House Committee on Resources. H. Rep. No. 107-561, 148 Cong. Rec. H4497 (daily ed. July 10, 2002). The bill would make certain adjustments to the boundaries of the Mount Naomi Wilderness Area.
  • H.R. 5093 (appropriations; DOI) was reported by the House Committee on Appropriations. H. Rep. No. 107-564, 148 Cong. Rec. H4552 (daily ed. July 11, 2002). The bill would make appropriations for the DOI and related agencies for the fiscal year ending September 30, 2003.

BILLS INTRODUCED

  • S. 2716 (Feinstein, D-Cal.) (Natural Gas Act; Federal Power Act) would modify the authority of FERC to conduct investigations, to increase the criminal penalties for violations of the Federal Power Act and the Natural Gas Act, and would authorize the Chairman of FERC to contract for consultant services. 148 Cong. Rec. S6573 (daily ed. July 10, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2719 (Domenici, R-N.M.) (Rio Grande River) would authorize the Secretary of the Army to carry out critical restoration projects along the Middle Rio Grande. 148 Cong. Rec. S6649 (daily ed. July 11, 2002). The bill was referred to the Committee on Environment and Public Works.
  • S. 2724 (Feinstein, D-Cal.) (energy trading) would provide regulatory oversight over energy trading markets and metals trading markets. 148 Cong. Rec. S6649 (daily ed. July 11, 2002). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 2725 (Corzine, D-N.J.) (Marine Protection, Research, and Sanctuaries Act) would amend the Marine Protection, Research, and Sanctuaries Act of 1972 to restrict ocean dumping at the site off the coast of New Jersey, known as the "Historic Area Remediation Site," to dumping of dredged material that does not exceed PCB levels of 113 parts per billion. 148 Cong. Rec. S6649 (daily ed. July 11, 2002). The bill was referred to the Committee on Environment and Public Works.
  • H.R. 5079 (Pallone, D-N.J.) (CWA) would amend the CWA to improve the enforcement and compliance programs. 148 Cong. Rec. H4424 (daily ed. July 9, 2002). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 5081 (Radanovich, R-Cal.) (federal land acquisition; property taxes) would provide full funding for the payment in lieu of taxes program for the next five fiscal years, to protect local jurisdictions against the loss of property tax revenues when private lands are acquired by a federal land management agency. 148 Cong. Rec. H4424 (daily ed. July 9, 2002). The bill was referred to the Committees on Resources, and Agriculture.
  • H.R. 5086 (Hayworth, R-Ariz.) (wildfires) would establish Institutes to conduct research on the prevention of, and restoration from, wildfires in forest and woodland ecosystems of the interior West. 148 Cong. Rec. H4497 (daily ed. July 10, 2002). The bill was referred to the Committees on Resources, and Agriculture.
  • H.R. 5092 (Pallone, D-N.J.) (Marine Protection, Research, and Sanctuaries Act) would amend the Marine Protection, Research, and Sanctuaries Act of 1972 to restrict ocean dumping at the site off the coast of New Jersey, known as the "Historic Area Remediation Site," to dumping of dredged material that does not exceed PCB levels of 113 parts per billion. 148 Cong. Rec. H4552 (daily ed. July 11, 2002). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 5097 (Christensen, D-V.I.) (Salt River Bay National Historical Park and Ecological Preserve) would adjust the boundaries of the Salt River Bay National Historical Park and Ecological Preserve located in St. Croix, Virgin Islands. 148 Cong. Rec. H4552 (daily ed. July 11, 2002). The bill was referred to the Committee on Resources.
  • H.R. 5099 (Hansen, R-Utah) (endangered species; capital construction) would extend the periods of authorization for the Secretary of the Interior to implement capital construction projects associated with the endangered fish recovery implementation programs for the Upper Colorado and San Juan River Basins. 148 Cong. Rec. H4552 (daily ed. July 11, 2002). The bill was referred to the Committee on Resources.
  • H.R. 5100 (Smith, R-N.J.) (EPA; U.S. Corps of Engineers) would deem a certain memorandum of agreement issued by EPA and the Corps of Engineers to be a final rule. 148 Cong. Rec. H4552 (daily ed. July 11, 2002). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 5102 (Hefley, R-Colo.) (wildfires) would expedite the process by which the Secretary of the Interior and the Secretary of Agriculture may utilize military aircraft to fight wildfires. 148 Cong. Rec. H4552 (daily ed. July 11, 2002). The bill was referred to the Committees on Agriculture, and Resources.
  • H.R. 5108 (Thompson, D-Cal.) (Native American lands) would authorize leases for terms not to exceed 99 years on lands held in trust for the Yurok Tribe and the Hopland Band of Pomo Indians. 148 Cong. Rec. H4552 (daily ed. July 11, 2002). The bill was referred to the Committee on Resources.
  • H.R. 5109 (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. The bill was referred to the Committee on Resources.

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 World Wildlife Fund issued a report claiming that, if current consumption trends continue, two planets will need to be colonized by 2050 to sustain existing lifestyles. See http://www.observer.co.uk/uk_news/story/0,6903,750782,00.html
  • An informal group of "friends" will convene in New York July 17 to work on the draft program of the World Summit on Sustainable Development (WSSD), according to U.N. Undersecretary General for Economic and Social Affairs Nitin Desai.
  • British Prime Minister Tony Blair is the only western leader who has confirmed plans to attend the WSSD. Meanwhile, South Africa has mobilized 26,000 police officers to deal with an estimated 40,000 protestors. As an example of the type of issue that may come up during the WSSD, Bangladesh said it plans to raise the matter of man-made upstream obstructions to the flow of the Ganges River. See http://independent-bangladesh.com/news/jul/09/09072002mt.htm#A3
  • The European Parliament adopted two Commission proposals on genetically modified organisms (GMOs) which would create a European Union (EU)-wide system to trace and label GMOs and to regulate the placing on the market and labelling of food and feed products derived from GMOs. The new legislation, with a low 0.5% threshold, is intended to further facilitate a trustworthy and environmentally safe approach to GMOs, GM food, and GM feed, and to ensure consumer choice through comprehensive labelling. The legislative package consists of a proposal for traceability and labelling of GMOs and products produced from GMOs and a proposal on regulating GM food and feed. It will require the traceability of GMOs throughout the chain from farm to table and provide consumers with information by labelling all food and feed consisting of, containing, or produced from a GMO. See http://www.europa.eu.int (Press Releases). Commissioner David Byrne said, "I want all GM food and feed labelled and I am pleased to see the Parliament supporting my approach. Moreover, the comprehensive labelling will allow consumers to decide if they want to buy food produced from GMOs. The two proposals together strike a good and balanced compromise between differing views. I firmly believe that they also provide the right approach to foster public confidence and social acceptance of the application of biotechnology in agri-food production. They will also give legal certainty for business operators as well as facilitating trade." Environment Commissioner Margot Wallström said: "By ensuring that GMOs can be traced at all stages in the production and marketing chain, we provide a robust safeguard system and the foundation for a comprehensive labelling system. In this way, we address some of the most critical concerns of the public regarding the environmental and health effects of GMOs and enable consumers to chose. I believe our proposals will build public confidence in new technologies. This in turn will facilitate business development and international trade."
  • The Parliament also adopted a proposal for a Council decision on the accession, on behalf of the European Community to the Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution to Abate Acidification, Eutrophication and Ground-Level Ozone.
  • The European Commission decided to take further legal action against Portugal, Spain, Italy, Sweden, Belgium, Luxembourg, The Netherlands, France, and Greece for noncompliance with EU laws on water quality legislation. The laws in question are the directives governing bathing water, drinking water, urban wastewater, nitrates, and discharges of dangerous substances. The Bathing Water and Drinking Water Directives set quality standards for water used for bathing and drinking, respectively, with the objective of safeguarding the public. The Urban Waste Water Directive sets requirements for treating waste water from major cities and towns. The Nitrates Directive aims to complement such treatment by reducing pollution from agriculture. The Directive on Dangerous Substances requires controls on polluting discharges from industries and other activities. See http://www.europa.eu.int (Press Releases). And the Commission began actions against Italy, Ireland, the United Kingdom, Greece, Spain, and Austria for alleged violations of air quality directives, and against Italy, Greece, and UK for alleged violations of noise control directives.
  • The EU ratified the Cartagena Protocol on Biosafety. Environment Commissioner Margot Wallström said "[t]his is a global issue which needs global action. The Cartagena Protocol establishes one set of basic international rules for dealing with GMOs. The Protocol will ensure countries, exporters and importers have the necessary information to make informed choices about GMOs. This Protocol will particularly help developing countries, which often lack the resources to assess the risks of biotechnology. If we are promoting free trade on a global scale we must ensure that protecting the environment and human health is taken into account. This is another example of our commitment to finding multilateral solutions for global problems. Last month the EU ratified the Kyoto Protocol on Climate Change. These measures contribute to our overall aim of sustainable development. We call on countries to ratify and implement the Cartagena Protocol and we urge those who are not in a position to ratify to contribute to the achievement of its objectives on a voluntary basis."
  • In a "mid-term review" of the EU's Common Agricultural Policy (CAP), the Commission reforms regarding subsidies and promotion of sustainable agricultural practices: "We cannot expect our rural areas to prosper, our environment to be protected, our farm animals to be well looked-after, and our farmers to survive, without paying for it. In future, farmers will not be paid for overproduction, but for responding to what people want: safe food, quality production, animal welfare and a healthy environment. While guaranteeing farmers a stable income, the new system will free them from the straitjacket of having to gear their production toward subsidies. They will be able to produce the crop or the type of meat where they see the best market opportunities and not the highest subsidies. And we will cut back on red tape and form-filling for farmers and national administrations. Our proposal means better value for money for farmers, consumers and taxpayers alike. It facilitates the enlargement process and helps to better defend the CAP in the WTO," said Franz Fischler, Commissioner for Agriculture, Rural Development and Fisheries. France and farmers groups made clear their opposition.
  • European environment ministers, meeting in Luxembourg, selected an increased maximum target for recycling (80%), a higher minimum target for paper and cardboard (60%), and a new target for wood (15%). The Commission has proposed that the new targets should be implemented in 2006. These targets must now be approved by the Parliament. The Parliament's Enviroment Committee, dealing with possible revisions to the packaging directive, agreed to raising the minimum target for recycling the "totality of packaging materials contained in packaging
    waste" from the Commission's proposed 55% to 65% (by weight) and to scrapping maximum targets.
  • In addition, the environment ministers reached an agreement in principle on the Commission's Proposal to amend the Seveso II Directive on managing the risks linked to major environmental accidents involving hazardous substances. The original proposal primarily addressed the need to reinforce the directive in light of the Baia Mare and Enschede accidents. The French delegation requested, in the wake of an incident in Toulouse, that the scope of the proposal be extended to establish threshold levels for ammonium nitrate.
  • A study published in Science concluded that canola crops that have been genetically modifed to be resistant to herbicides do cross-pollinate with non-GM crops. But the researchers found that only a slight amount of contamination occurs.
  • A new strategy on Corporate Social Responsibility (CSR), which aims to take forward the contribution of business to sustainable development, was adopted by the European Commission (EC). The policy paper issued by the EC calls for a new social and environmental role for business in a global economy and sets up a "European Multi-Stakeholder Forum" for business networks, civil society, consumers and investors to exchange best practices, establish principles for codes of conduct, and seek consensus on objective evaluation methods and validation tools such as "social labels." The strategy seeks to complement existing initiatives by companies themselves and by public organisations such as the OECD and the U.N. CSR is defined as voluntary social and environmental practices of business, linked to their core activities, which go beyond companies' existing legal obligations. See http://europa.eu.int/comm/employment_social/soc-dial/csr/csr_index.htm
  • French Prime Minister Jean-Pierre Raffarin empowered a commission to draft a new environmental protection provision for the nation's constitution. He also announced a ban on the use or storage of phosgene gas at chemical plants in Toulouse, following an explosion in September 2001 that killed 30 and caused hundreds of millions of dollars in damages.
  • The U.N. Environment Program issued a report, Africa Environment Outlook, which gave a pessimistic view of environmental conditions. See http://www.unep.org/Documents/Default.asp?DocumentID=255&ArticleID=3086
  • Energy ministers from the Nordic countries said they would spend $9.8 million to assist in addressing carbon dioxide emissions in the Baltic Sea region.
  • The Ocean Conservancy issued a report dealing with overfishing, noting that it is a more serious problem than ocean pollution. See http://www.oceanconservancy.org/dynamic/aboutUs/publications/healthReports/healthReports.htm
  • British researchers said they had found evidence that synthetic estrogens affect sperm viability.
  • Canadian imports of hazardous waste for landfilling without pre-treatment declined for the second year in a row according to figures released by Environment Canada. Imports for landfilling without pre-treatment totaled 106,000 tons in 2001, down 34% from 2000 levels (160,000 tons), and down 55% from 1999 levels, when they peaked at 235,000 tons. Environment Minister David Anderson said that over the next 18 months, Environment Canada will introduce amendments to existing regulations and propose new regulations on the management of hazardous waste and hazardous recyclable material. The proposed regulations will implement new powers under the Canadian Environmental Protection Act, 1999 which authorizes the Minister of the Environment to develop criteria to ensure the environmentally sound management of wastes and recyclable materials, and to assess export and import permit applications based on these criteria. See http://www.ec.gc.ca/press/2002/020709_n_e.htm
  • Tanzania said that immediate action was necessary to address deforestation in the Kilimanjaro National Park.
  • Botswana said it would request permission from the Convention on International Trade in Endangered Species to cull part of its elephant population, citing habitat damage and encroachment.

CLIMATE CHANGE

  • Japanese Prime Minister Junichiro Koizumi and Danish Prime Minister Anders Fogh Rasmussen, representing the European Union (EU), said that Japan and the EU would work together to promote more aggressive emission reduction strategies and to provide aid for developing countries.
  • Japan, in a climate change trading deal, agreed to renovate a power plant in Kazakhstan, reducing emissions, in exchange for obtaining credits for the right to emit more carbon dioxide from its own facilities.
  • Japan's Ministry of the Environment said it would create a consistent formula for greenhouse gas emission data reporting.
  • EU Energy Commissioner Loyola de Palacio said the EU's current energy policies do far more to encourage energy efficiency and the use of renewable energy than any of the proposals introduced in the U.S. Congress. "The EU's approach is much more focused on energy efficiency and trying to reduce energy consumption. The American plan doesn't really touch on that," de Palacio said.
  • Australia and the United States announced a joint 19-program initiative in areas including climate change science, emissions-cutting strategies, and working with business on technology to reduce emissions. "The exchange of knowledge and experience on policies and approaches
    developed by the U.S. and Australia to reduce greenhouse emissions will make both countries' domestic programs more effective," said Paula Dobriansky, U.S. Undersecretary of State for Global Affairs. See http://www.theaustralian.news.com.au/

  • Research groups in Europe combined forces to create the Carbo-Invent project, which is intended to provide accurate information on carbon inventories.
  • International Rivers Network, a U.S.-based advocacy group, issued a report which contends that "hydropower reservoirs may be much worse climate polluters than even coal power plants." See http://www.irn.org/wcd/IRNGHGsfromDams.pdf
  • An advisory group urged Japan to establish a mock emissions credit trading system in fiscal years 2003 and 2004. The Ministry of Environment agreed to do so.
  • Australian Foreign Affairs Minister Alexander Downe said the Kyoto Protocol, even if fully implemented, would not do enough to achieve its goals.
  • Bluewater Network issued a report which contends that climate change "threatens the ecosystems of every national park, refuge and seashore" in the United States. The report predicts that glaciers will disappear from Montana's Glacier National Park within 28 years, large portions of the Florida Keys and the Everglades will be submerged and the Lake Tahoe area will loose 75% of its seasonal snow cover. See http://www.bluewaternetwork.org/

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