Jump to Content

Weekly Update Volume 32, Issue 21

07/29/2002

LITIGATION

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

CWA, TOTAL MAXIMUM DAILY LOADS (TMDLs), WATER QUALITY LIMITED SEGMENTS (WQLS), CONSTRUCTIVE SUBMISSION:

The Ninth Circuit affirmed a district court dismissal of an environmental group's CWA citizen suit claiming that EPA had a non-discretionary duty to establish TMDLs for the state of California. The CWA TMDL program required states to submit lists of affected waters and TMDLs by 1979. Once submitted, EPA must either approve the TMDL or disapprove it, after which EPA must establish the TMDLs for the state. The CWA is silent as to the nature of EPA's obligations if a state fails to make any inital submission. Here, California did not submit any TMDLs until 1994, but since that time has completed TMDLs for listed state waters. Nevertheless, the group claimed that the state's failure to submit any TMDLs before 1994 constituted constructive submission of no TMDLs, thereby triggering a non-discretionary duty on EPA's part to establish TMDLs for the entire state. Although several circuits have recognized or employed the doctrine of constructive submission of no TMDLs, the doctrine applies only when a state fails to submit any TMDLs and has no plans to remedy the situation. California submitted at least 18 TMDLs and established a schedule for completing the state's remaining TMDLs. These actions preclude any finding that the state has clearly and unambiguously decided not to submit any TMDLs. Thus, EPA does not have a non-discretionary duty to submit TMDLs for the state. The group also argued that California's CWA §303(d) submissions that listed WQLSs but not TMDLs were incomplete and, therefore, should have been disapproved by EPA. However, although states must submit both WQLSs, identifying the polluted waters, and TMDLs, specifying the action to be taken, nothing in the statute requires that they be submitted simultaneously. Nor does the statute state or imply that a submission will be incomplete unless it contains both a WQLS and a corresponding TMDL. Moreover, EPA did not violate the APA duty to avoid unreasonable delay in agency action by failing to assure the establishment of the state's TMDLs because the Agency had no statutory duty to act with regard to the state's failure to submit TMDLs until 1994. In addition, because the group's suit alleged agency inaction, the district court's review was not limited to the administrative record and it permissibly relied on an EPA program review of the state's TMDLs. San Francisco Baykeeper v. Whitman, No. 01-16111 (9th Cir. July 17, 2002) (17 pp.).

CWA, WETLANDS, JURISDICTION:

The Fourth Circuit held that the U.S. Supreme Court's decision in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159, 31 ELR 20382 (2001) (SWANCC), did not fundamentally or significantly change the law governing a development company's conviction for discharging fill material into protected wetlands in violation of the CWA. In 1999, the company pled guilty to one count of knowingly filling wetlands and entered into a consent decree with the United States. After the Supreme Court decided SWANCC, the company filed a petition for writ of error coram nobis and a motion to vacate the consent decree under Fed. R. Civ. P. 60(b)(5), arguing that SWANCC legalized the conduct underlying the criminal conviction and the consent decree. The district court properly denied both applications. Neither the writ of error coram nobis nor the motion to vacate is warranted unless there has been a fundamental or significant change in the law governing the case. The company argued that such a change had occurred because SWANCC eliminated the federal government’s jurisdiction over the wetlands at issue. The company is incorrect. At issue in SWANCC was the U.S. Army Corps of Engineers’ jurisdiction over an isolated intrastate body of water under 33 C.F.R. §328.3(a)(3), the only subsection that covers isolated bodies of water. Here the Corps’ jurisdiction does not rest on subsection (a)(3). Rather, the Corps’ jurisdiction for purposes of the guilty plea and the consent decree is based on 33 C.F.R. §328.3(a)(1), (a)(5), and (a)(7). Further, because the Fourth Circuit already invalidated 33 C.F.R. §328.3(a)(3) in its entirety in United States v. Wilson, 133 F.3d 251, 28 ELR 20299 (4th Cir. 1997), an opinion issued before either the plea or the consent decree, SWANCC effected no relevant change in decisional law in the circuit. United States v. Interstate General Co., No. 01-4513 (4th Cir. July 2, 2002) (8 pp.).

CWA, POINT SOURCE DISCHARGE, CAUSATION:

The Tenth Circuit affirmed a district court's grant of summary judgment in favor of a wastewater treatment facility sued by landowners alleging that the facility allowed pollutants to be discharged onto their property in violation of the CWA. The landowners contended that because fecal coliform was detected in water samples taken from a neighbor's property, located south of the facility, as well as samples taken from their own property, located southwest of the facility, the facility must be the source of the pollutants. The landowners, however, failed to provide any credible evidence supporting this theory. First, the landowners failed to provide any evidence of a point source discharge from the facility. Moreover, even assuming evidence existed demonstrating that water from the facility either flows onto the landowners' property or somehow infiltrates the property's groundwater, there is no evidence that this water is polluted with fecal coliform originating from the facility. The facility put forth substantial evidence suggesting that the fecal coliform detected on the properties could not have come from the facility. Meanwhile, the landowners' expert limited his testing to water found on the landowners' and neighbor's properties, both of which are used for grazing cattle. Fecal coliforms originate from both cattle and humans, and the landowners' expert admitted it is impossible to differentiate fecal coliform originating in human waste from that originating in the waste of other warm-blooded animals such as cattle based on the type of tests used. Because the landowners failed to present any credible evidence demonstrating a point source discharge of any pollutant from the facility, the district court properly granted summary judgment in favor of the facility. Bufford v. Williams, No. 00-6055 (10th Cir. July 2, 2002) (6 pp.).

TAKINGS, NORTHERN SPOTTED OWL, LOGGING:

The Federal Circuit held that a logging company's takings claims against the United States, based on the temporary prohibition of logging due to an injunction entered by an Oregon court, were properly dismissed for failure to state a claim. The injunction prohibited the company from logging its property without an interim take permit for the northern spotted owl. After the injunction was issued, the company sought an interim take permit. The FWS subsequently discovered that northern spotted owls no longer existed in the area. The permit, therefore, was no longer necessary, and the injunction was lifted. The company then filed suit against the government for the temporary taking of merchantable timber. The trial court properly dismissed the company's claims for failure to state a claim. The injunction merely required that no logging take place without a permit. The denial of a permit, therefore, is a necessary trigger for a ripe takings claim. If the government denies a permit, then the aggrieved party can seek compensation. Similarly, if at some point the government reconsiders its earlier denial and then grants the permit, the aggrieved party can seek compensation for a temporary regulatory taking. Here, however, the FWS did not deny the logging company's permit. Moreover, only extraordinary delays in the permitting process ripen into a compensable taking, but the company made no claim of delay. In addition, the company's argument that the injunction resulted in a per se taking was rejected. The company claimed that the injunction prevented it from excluding owls on its property and that it was required to allow government officials on its property, but the nature of the intrusion the company complains of is insufficient to make out a per se takings claim. Boise Cascade Co. v. United States, No. 01-5106 (Fed. Cir. July 19, 2002) (30 pp.).

TAKINGS, TOBACCO REGULATIONS:

The Federal Circuit affirmed a trial court summary judgment decision holding that the Food and Drug Administration's (FDA's) tobacco regulations did not effectuate a temporary regulatory taking of vending machine owners' property because the challenged regulations were never enforced. The regulations banned the sale of cigarettes and smokeless tobacco from vending machines in venues accessible to people under the age of 18. The mere enactment of the regulations is not sufficient to create a taking. Mere enactment is sufficient only in the context of facial challenges. Moreover, while the regulation was to go into effect on August 28, 1997, the owners cannot assert a taking as of that date because on April 25, 1997, the FDA was enjoined from enforcing the regulations. In addition, the owners failed to present any evidence that after the date the regulations technically went into effect, the FDA actually took steps to enforce them in violation of the injunction. Further, the trial court did not err in denying the owners discovery to determine whether or not the regulations were actually enforced at any time. Not only did the owners fail to demonstrate more than a "speculative hope" of finding evidence to support their claim of enforcement, they also failed to file an affidavit explaining why they could not respond to the government's summary judgment motion without discovery. Brubaker Amusement Co. v. United States, Nos. 01-5070 et al. (Fed. Cir. July 15, 2002) (21 pp.).

ENERGY, EXCESS FEDERAL POWER:

The Ninth Circuit dismissed a public power agency petition challenging the Bonneville Power Administration's (BPA’s) method for calculating its 1999 and 2000 10-year forecasts of excess federal power, but granted aluminum companies' petitions challenging the BPA's method for calculating excess federal power. The agency argued that the BPA impermissibly based its 1999 and 2000 forecasts on considerations other than its “then-current” obligations for future power sales. However, it was reasonable for the BPA to ground its forecasts in the best information available at that time, i.e., predictions of future energy demand dervied from its subscription process. In the Excess Federal Power Act, Congress defined and authorized the sale of excess federal power but did not address the factors the BPA must consider in forecasting its availability. Instead, Congress implicitly delegated to the BPA the authority to develop the necessary procedures to implement the marketing of excess federal power. Here, the method the BPA chose under the circumstances were reasonable. The agency also challenged the BPA's determination that it would not have sufficient excess federal power to serve the agency's needs in 2005. Under their sales agreement, the BPA was obligated to serve the agency until 2004. After that date, the obligation was conditional based on the availability of excess federal power. Although in 1999 the BPA anticipated that it would have sufficient excess federal power for the agency in 2005, the BPA's unconditional obligations for 2005 have since risen. And there is nothing arbitrary or capricious about the BPA accounting for its unconditional obligations before its conditional ones. The agency also challenged the timeliness of the BPA’s 1999 and 2000 written notices of available excess federal power and the timeliness of the BPA’s 2000 final 10-year forecast of excess federal power. These claims, however, sound in contract rather than in the Pacific Northwest Electric Power Planning and Conservation Act. The court, therefore, lacked jurisdiction to hear the timeliness claims. Several aluminum companies also challenged the BPA’s method for calculating excess federal power. They correctly argued that the BPA violated Congress' directive by treating power it refused to sell to direct service industrial customers as excess federal power. In the Excess Federal Power Act, Congress defined excess federal power in plain terms--reduced energy obligations “due to the election by customers . . . to purchase power elsewhere.” This language makes clear that Congress intended that excess federal power arise from decisions of the BPA’s customers, not the agency itself. Therefore, the BPA violated Congress’s directive by treating the power it refused to sell as power the direct service industrial customers elected not to purchase. M-S-R Public Power Agency v. Bonneville Power Administration, Nos. 99-71536 et al. (9th Cir. July 11, 2002) (20 pp.).

FREEDOM OF INFORMATION ACT (FOIA), FEDERAL AGENCY RECORDS:

The Eighth Circuit upheld the FWS' denial of Missouri's FOIA request for certain documents produced by a nonprofit corporation involved in the conservation and protection of the Missouri River. The corporation is made up of fish and wildlife conservation agencies of various Missouri River Basin states. Under an agreement between the FWS and the corporation, an FWS employee serves as the corporation's coordinator. Missouri requested certain documents from the corporation concerning its recommendations to the U.S. Army Corps of Engineers regarding changes to the river and its natural habitat, but the corporation denied the state's request. The state filed suit in district court, but the court granted summary judgment in favor of the FWS, finding that the requested records were not agency records and, therefore, were outside the scope of the FOIA. Missouri claimed that the agreement between the corporation and the FWS, which guarantees that the records will be maintained at federal expense by a full-time federal employee, created a nexus between the requested records and the agency’s work sufficient to transform the corporation's records into agency records for purposes of compelling disclosure under FOIA. The provision of federal funding, however, is insufficient to transform a private organization into a federal agency. Moreover, records that never pass from private to agency control are not agency records, despite the potential access ability. The state, therefore, failed to establish the requisite nexus between the corporation’s records and the FWS’ performance of its official agency duties. Likewise, the state failed to show that the FWS exercised control of the requested documents. The documents were kept in separate filing systems, the coordinator reports to the corporation for all substantive employment issues, and no FWS employee other than the coordinator ever worked on or accessed the requested documents. Missouri v. U.S. Department of the Interior, No. 01-3002 (8th Cir. July 22, 2002) (10 pp.).

NEPA, NATIONAL FOREST MANAGEMENT ACT (NFMA), LAND EXCHANGE:

The Tenth Circuit held that two U.S. Forest Service land transactions with a ski resort complied with NEPA and the NFMA. In one transaction, the Forest Service approved the construction of large resort facility on a mountain owned by the federal government but used by the ski resort under a special use permit. In another transaction, the Forest Service transferred to the resort small fractions of land in return for land adjacent to other federal property. A nonprofit organization filed suit, alleging that the Forest Service's handling of these transactions was arbitrary and capricious in several respects. The group argued that the Forest Service, in approving the land exchange, failed to comply with NEPA's categorical exclusion requirements. The Forest Service, however, adequately explained its basis for subjecting the land exchange to a categorical exclusion and properly applied the categorical exclusion it invoked. The group also argued that the Forest Service failed to give adequate notice before implementing the land exchange. The group, however, lacks standing to assert this claim. Even if it had standing, the group would lose on the merits. Further, the land received by the Forest Service in the exchange was approximately equal to the land it gave up. The group also argued that the Forest Service did not consider a sufficient number of alternatives before authorizing the construction of the facility on the mountain. Contrary to group's claim, the Forest Service did not breach the "rule of reason" by refusing to study in detail alternatives that would have limited the structure's size or moved the structure off-peak altogether. Proposals calling for smaller structures on the mountain or removing the structure to another location were impractical and failed to satisfy the project's objectives. Last, the group argued that the Forest Service violated the NFMA by improperly amending an existing forest plan to allow for construction on the mountain. The Forest Service provided sufficient notice to the public on the amendment, and it adequately considered the factors that the Forest Service Handbook indicated should be used when assessing a forest plan amendment's significance. Citizen's Committee to Save Our Canyons v. United States Forest Service, No. 01-4082 (10th Cir. July 23, 2002) (58 pp.).

NEPA, ESA, STANDING:

A district court granted summary judgment in favor of the National Park Service (NPS) in a city's lawsuit alleging that the NPS violated NEPA, the ESA, the CZMA and several other statutes in connection with its EIS for the redevelopment of Fort Baker, a former military base in California. The EIS for the site focuses on new uses for historic buildings at Fort Baker, expansion of the Bay Area Discovery Museum, visitor recreation, and the protection, restoration, and maintenance of natural areas. Although the city demonstrated an injury-in-fact sufficient to satisfy the requirements of Article III standing, the city failed to show prudential standing with regard to the CZMA, the Marine Mammal Protection Act, the Migratory Bird Treaty Act, Park Service regulations, and the 1996 Parks and Public Lands Omnibus Act. Summary judgment was therefore granted in favor of the NPS on those claims. In addition, the city failed to prove any violations with respect to its remaining claims. The city failed to show that the NPS violated NEPA under the applicable "rule of reason" standard of review. The NPS' choice of alternatives was reasonable, the EIS contained a reasonably thorough discussion of the project's impacts on marine life and mitigation efforts, and its discussion on the removal of trees was sufficient. Likewise, the failure of the NPS to append the economic analysis from the administrative record to the final EIS and its decision to set forth scientific sources in an index rather than in footnotes were not arbitrary and capricious. Further, the EIS reflects that the NPS took a hard look at the FWS' biological opinion and incorporated its recommendations. Nor did the NPS act arbitrarily or capriciously under the ESA. Its draft EIS complied with the Act's requirement to prepare a biological assessment. Although the draft EIS could have contained more analysis on the project's effect on salmon, that finding does not support a determination that the NPS acted arbitrarily or capriciously. Similarly, the NPS adequately considered scientific evidence with regard to salmon and the mission blue butterfly. Lastly, the Fort Baker plan constitutes a reasoned exercise of discretion by the NPS under the NPS Organic Act. City of Sausolito v. O'Neill, No. C-01-01819 EDL (N.D. Cal. July 3, 2002) (Laporte, J.) (39 pp.).

TOXIC SUBSTANCES, CERCLA, CONSTITUTIONAL LAW:

A district court dismissed CERCLA, OSHA Act, and 42 U.S.C. §1983 claims filed against a school district by school employees who were exposed to unknown toxic fumes and suffered damages. The employees failed to provide a jurisdictional basis for their CERCLA suit. Nor are there any possible facts that could be alleged that would give rise to a claim under CERCLA. The "response costs" that the employees have pled do not come under CERCLA's statutory definition of such costs. Even if the employees claimed that they were entitled to recovery for their personal injuries under CERCLA, CERCLA does not cover compensation to private parties for bodily and economic injury traditionally within the reach of state tort law. Although CERCLA does not ignore medical concerns, such medical care provisions are separate from the CERCLA §107 liability provision. The employees' OSHA Act claim also was dismissed because the Act does not provide a basis for jurisdiction. In addition, the employees' state created danger, failure to train, and First Amendment claims under 42 U.S.C. §1983 were dismissed. Their state created danger claim is analogous to a typical tort claim under state law, which is not supplanted by the Due Process Clause. Moreover, there were no constitutional violations that could give rise to either a failure to train or First Amendment claim. Because there are no viable federal claims and this matter is truly a state tort claim brought by state employees against a state governmental entity, the court declined to exercise its supplemental jurisdiction over the employees' state personal injury claims. Kittok v. Lagasse, No. Civ.A. 01-2441 (E.D. La. July 10, 2002) (Duval, J.) (8 pp.).

FINAL AGENCY ACTION, PERMIT ISSUANCE:

A district court remanded to the U.S. Army Corps of Engineers a company's application for a permit to dump certain sediment from a channel adjoining one of its plants into a historic area remediation site. After the company applied for the permit, the Corps published notice that it intended to issue the permit subject to public comment, and only a few negative comments were received. However, the day after the comment period ended, the Corps and EPA published a joint memorandum that lowered the permissible level of PCBs in the relevant sediment and made that standard applicable to all future and pending permit applications. The following day, EPA withdrew its consent to issue the company's permit on the ground that the company's dredged material failed to meet the new standard. The joint memorandum issued by the Corps and EPA, however, being binding and outcome determinative, was a rule, subject to the notice-and-comment requirements of the APA, which it failed to go through. Therefore, the Corps' and EPA's effective denial of the company's permit application on the basis of this unlawfully promulgated rule was improper. It does not follow, however, that the company is automatically entitled to the permit because the Corps and EPA never gave any consideration to the public comments received during the company's comment period prior to promulgation of the new standard. Thus, the matter was remanded to the Corps for reconsideration of the company's permit application, applying pre-memorandum standards but taking account of the public comments received. United States Gypsum Co. v. Muszynski, No. 00 CIV 9700 (JSR) (S.D.N.Y. July 15, 2002) (3 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 NESHAPs for existing and new facilities that apply surface coatings to large appliances. 67 FR 48253 (7/23/02).
  • EPA proposed to add two source categories, brick and structural clay products manufacturing and clay ceramics manufacturing, to the list of categories of major sources of hazardous air pollutants under CAA §112(c) and to the source category schedule for NESHAPs. 67 FR 47893 (7/22/02).
  • EPA listed acceptable and unacceptable substitutes for ozone-depleting substances in the foam blowing sector under its Significant New Alternatives Policy program. 67 FR 47703 (7/22/02).
  • FDA amended its regulation on the use of chlorofluorocarbon propellants in self-pressurized containers to make it consistent with other laws and is setting the standard it will use to determine which FDA-regulated products that utilize an ozone-depleting substance are essential under the CAA. 67 FR 48370 (7/24/02).
  • EPA entered into two proposed settlement agreements that address challenges to two separate final actions the Agency took with regard to determining that the one-hour ozone NAAQS no longer applied in different areas of the country. 67 FR 48896 (7/26/02).
  • EPA announced the availability of the Alkyl-lead National Action Plan. 67 FR 48177 (7/23/02).
  • EPA approved a CAA §112 delegation request submitted by the state of Maine to implement and enforce state permit terms and conditions that substitute for the NESHAPs for the pulp and paper industry. 67 FR 46393 (7/15/02).
  • EPA approved a request from Minnesota for delegation of the federal air toxics program under CAA §112(l). 67 FR 48036 (7/23/02).
  • EPA determined that the Portneuf Valley nonattainment area in Idaho has attained the NAAQS for particulate matter having an aerodynamic diameter of 10 microns or less (PM10). 67 FR 48552 (7/25/02).
  • EPA redesignated Minnesota's request to redesignate Ramsey County to attainment of the NAAQS for PM10. 67 FR 48787 (7/26/02).
  • EPA approved Puerto Rico's CAA §111(d) plan to implement and enforce the emission guidelines for existing municipal solid waste landfills. 67 FR 46598 (7/16/02).

DRINKING WATER:

  • EPA approved a revision to Wyoming's state underground injection control program that exempts portions of the Lance Formation within the Powder River Basin from being classified as underground sources of drinking water. 67 FR 47721 (7/22/02).

HAZARDOUS WASTES & SUBSTANCES:

  • EPA promulgated final regulations under RCRA that apply to the recycling of hazardous secondary materials to make zinc fertilizer products. 67 FR 48393 (7/24/02).
  • EPA announced the availability of recently acquired data on cement kiln dust studied in the Agency's 1993 Report to Congress on Cement Kiln Dust; the Agency is now considering an approach whereby it would finalize the proposed option of issuing the protective cement kiln dust management standards as described in the August 20, 1999, proposal (64 FR 45632) as a RCRA Subtitle D rule. 67 FR 48648 (7/25/02).
  • The Agency for Toxic Substances and Disease Registry announced those sites for which it has completed public health assessments during the period from April 2002 through June 2002. 67 FR 48660 (7/25/02).
  • EPA announced the availability of the draft Contaminated Sediments Science Plan for comment. 67 FR 47798 (7/22/02).
  • EPA entered into a proposed consent decree under CERLCA §122 in connection with the LCP-Holtrachem Superfund site in Riegelwood, North Carolina. 67 FR 48470 (7/24/02).
  • EPA entered into a proposed settlement under CERCLA §122(h) in connection with the Valley Chemical Superfund site in Greenville, Mississippi. 67 FR 47800 (7/22/02).
  • EPA entered into a proposed de minimis settlement under CERCLA §122 in connection with the Malvern TCE Superfund site in East Whiteland and Charlestown Townships, Pennsylvania. 67 FR 48897 (7/26/02).
  • EPA granted a petition to exclude vitrified spent potliner generated and treated at the Ormet Primary Aluminum Corporation's facility in Hannibal, Ohio, from the lists of hazardous wastes. 67 FR 48555 (7/25/02).
  • EPA promulgated a site-specific rule that provides regulatory flexibility under RCRA for two Virginia landfills in order to implement a project under EPA's Project XL program. 67 FR 47310 (7/18/02).
  • EPA approved revisions to Georgia's hazardous waste program under RCRA. 67 FR 46600 (7/16/02).

NATIONAL FORESTS:

  • The U.S. Forest Service issued an interim directive to provide internal guidance to its employees in implementing a rental fee waiver for noncommercial, educational sectarian broadcasters that hold a Forest Service lease or special use permit to occupy National Forest System lands for telecommunications purposes. 67 FR 46452 (7/15/02).

NEPA:

  • The Coast Guard revised its list of agency actions that it has determined do not individually or cumulatively have a significant effect on the human environment and, thus, are categorically excluded from the requirements to prepare an EA or EIS under NEPA. 67 FR 48243 (7/23/02).

PESTICIDES:

  • EPA announced the availability of the interim reregistration eligibility decision document and technical support documents for the organophosphate pesticde disulfoton. 67 FR 46971 (7/17/02).
  • EPA determined that 47 organophosphate tolerances can be reassessed at this time, and has concluded that these tolerances make, at most, a negligible contribution to the cumulative risk from organophosphate pesticides. 67 FR 46972 (7/17/02).

SMCRA PROGRAM APPROVALS:

  • OSM approved an amendment to New Mexico's regulatory program under SMCRA. 67 FR 46377 (7/15/02).
  • OSM proposed to approve an amendment to Montana's regulatory program under SMCRA. 67 FR 46434 (7/15/02).
  • OSM proposed the removal of two instructions to Kentucky pertaining to required amendments to the state's regulatory program under SMCRA. 67 FR 46432 (7/15/02).

TOXIC SUBSTANCES:

  • EPA announced that it received Mississippi's application to administer and enforce training and certification requirements, training program accreditation requirements, and work practice standards for lead-based paint activities in target housing and child-occupied facilities under TSCA §402. 67 FR 47541 (7/19/02).

TRANSPORTATION:

  • The Research and Special Programs Administration and the Federal Motor Carrier Safety Administration issued an advance notice of proposed rulemaking in which they announced that they are examining the need for enhanced security requirements for the motor carrier transportation of hazardous materials. 67 FR 46622 (7/16/02).
  • The Federal Motor Carrier Safety Administration proposed to eliminate an outdated requirement for certain motor vehicle operators to stop periodically to check their tires; eliminating this requirement will enhance the security of hazardous materials shipments. 67 FR 46624 (7/16/02).

WATER QUALITY:

  • EPA amended the Oil Pollution Prevention regulation, which includes requirements for spill prevention, control, and countermeasure plans, and for facility response plans. 67 FR 47041, 47091, 47141 (7/17/02).
  • EPA announced the availability of data in connection with its January 12, 2001 (66 FR 2959), proposal concerning national pollutant discharge elimination system provisions that define which operations are concentrated animal feeding operations (CAFOs) and establish permit requirements; and concerning proposed effluent limitations guidelines for feedlots (beef, dairy, swine, and poultry subcategories), which establish the technology-based effluent discharge standards for CAFOs. 67 FR 48099 (7/23/02).
  • EPA announced the availability of a guidance document entitled National Beach Guidance and Required Performance Criteria for Grants. 67 FR 47540 (7/19/02).
  • EPA issued an NPDES general permit regulating discharges or potential discharges from egg production operations in New Mexico and Oklahoma. 67 FR 47362 (7/18/02).

WILDLIFE:

  • FWS proposed to add snakeheads to the list of injurious fish, mollusks, and crustaceans; the listing would prohibit the interstate transportation and importation of any live animal or viable egg of snakeheads into the United States without a permit. 67 FR 48855 (7/26/02).
  • FWS issued an emergency rule to list the Sonoma County distinct population segment of the California tiger salamander as endangered under the ESA. 67 FR 47726 (7/22/02).
  • FWS proposed to make permanent the provisions of its emergency rule listing the Sonoma County distinct population segment of the California tiger salamander as endangered under the ESA. 67 FR 47758 (7/22/02).
  • FWS proposed to designate critical habitat for the Preble's meadow jumping mouse under the ESA. 67 FR 47153 (7/17/02).

DOJ NOTICES OF SETTLEMENTS:

  • United States v. City of Atlanta, NO. 198-CV-1956-TWT (N.D. Ga. July 12, 2002). Under a modified consent decree, a settling CWA defendant must substitute a tunnel project for a diversion project, must provide for a different date of completion for the tunnel project, and must change the time in which it must remit payment of stipulated penalties. 67 FR 48671 (7/25/02).
  • United States v. Deutschumann, No. 02-10240 (MEL) (D. Mass. July 15, 2002). A settling CERCLA defendant must liquidate all real estate owned by the defendant, except for her residence, in order to pay U.S. response costs incurred at the Toka Renbe Farm Superfund site in Canton, Massachusetts, and must pay an up-front cash payment to the United States and a cash payment to fund a trust for the purpose of liquidating real property for the United States. 67 FR 48671 (7/25/02).

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

THE CONGRESS

CHAMBER ACTION

  • S. 434 (Native American lands), which would provide equitable compensation to the Yankton Sioux Tribe of South Dakota and the Santee Sioux Tribe of Nebraska for the loss of value of certain lands, was passed by the Senate. 148 Cong. Rec. S7319 (daily ed. July 24, 2002).
  • S. 1175 (Vicksburg National Military Park), which would modify the boundary of Vicksburg National Military Park to include the property known as Pemberton's Headquarters, was passed by the Senate. 148 Cong. Rec. S7321 (daily ed. July 24, 2002).
  • H.R. 2990 (water resources), which would amend the Lower Rio Grande Valley Water Resources Conservation and Improvement Act of 2000 to authorize additional projects under that Act, was passed by the House. 148 Cong. Rec. H5006 (daily ed. July 22, 2002).
  • H.R. 3048 (Alaskan lands; Russian River), which would resolve the claims of Cook Inlet Region, Inc., to lands adjacent to the Russian River in Alaska, was passed by the House. 148 Cong. Rec. H4773 (daily ed. July 22, 2002).
  • H.R. 3258 (FLPMA), which 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, was passed by the House. 148 Cong. Rec. H5000 (daily ed. July 22, 2002).
  • H.R. 3401 (land conveyance), which would provide for the conveyance of Forest Service facilities and lands comprising the Five Mile Regional Learning Center in California to the Clovis Unified School District and would authorize a new special use permit regarding the continued use of unconveyed lands comprising the Center, was passed by the House. 148 Cong. Rec. H5000 (daily ed. July 22, 2002).
  • H.R. 4807 (Blackwater National Wildlife Refuge Expansion), which 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, was passed by the House. 148 Cong. Rec. H4596 (daily ed. July 22, 2002).
  • H.R. 4870 (Mount Naomi Wilderness), which would make certain adjustments to the boundaries of the Mount Naomi Wilderness Area, was passed by the House. 148 Cong. Rec. H4999 (daily ed. July 22, 2002).
  • H.R. 5093 (appropriations; DOI), which would make appropriations for the DOI and related agencies for the fiscal year ending September 30, 2003, was passed by the House. 148 Cong. Rec. H4773 (daily ed. July 22, 2002).

COMMITTEE ACTION

  • S. 434 (Native American lands) was reported by the Senate Committee on Indian Affairs. S. Rep. No. 107-214, 148 Cong. Rec. S7164 (daily ed. July 22, 2002). The bill would provide equitable compensation to the Yankton Sioux Tribe of South Dakota and the Santee Sioux Tribe of Nebraska for the loss of value of certain lands.
  • S. 2778 (appropriations; U.S. Department of Commerce) was reported by the Senate Committee on Appropriations. S. Rep. No. 107-218, 148 Cong. Rec. S7308 (daily ed. July 24, 2002). The bill would make appropriations for the Departments of Commerce, Justice, and State, the Judiciary, and related agencies for the 2003 fiscal year.
  • S. 2784 (appropriations; energy and water development) was reported by the Senate Committee on Appropriations. S. Rep. No. 107-220, 148 Cong. Rec. S7308 (daily ed. July 24, 2002). The bill would make appropriations for energy and water development for the fiscal year ending September 30, 2003.
  • H.R. 2990 (water resources) was reported by the Committee on Resources. H. Rep. No. 107-580, 148 Cong. Rec. H4765 (daily ed. July 16, 2002). The bill would amend the Lower Rio Grande Valley Water Resources Conservation and Improvement Act of 2000 to authorize additional projects under that Act.
  • H.R. 3048 (Cook Inlet) was reported by the Committee on Resources. H. Rep. No. 107-573, 148 Cong. Rec. H4604 (daily ed. July 15, 2002). The bill would resolve the claims of Cook Inlet Region, Inc., to lands adjacent to the Russian River in the state of Alaska, with an amendment.
  • H.R. 3401 (Forest Service lands) was reported by the Committee on Resources. H. Rep. No. 107-574, 148 Cong. Rec. H4604 (daily ed. July 15, 2002). The bill would provide for the conveyance of Forest Service facilities and lands comprising the Five D755 Mile Regional Learning Center in California to the Clovis Unified School District and would authorize a new special use permit regarding the continued use of unconveyed lands comprising the Center
  • H.R. 3815 (national historic sites) was reported by the Committee on Resources. H. Rep. No. 107-581, 148 Cong. Rec. H4765 (daily ed. July 16, 2002). The bill would authorize the Secretary of the Interior to conduct a study of the suitability and feasibility of establishing a Presidential National Historic Site in Hope, Arkansas.

BILLS INTRODUCED

  • S. 2727 (Akaka, D-Haw.) (paleontological resources) would provide for the protection of paleontological resources on federal lands. 148 Cong. Rec. S6707 (daily ed. July 12, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2728 (Dayton, D-Minn.) (agriculture) would provide emergency agricultural disaster assistance. 148 Cong. Rec. S6808 (daily ed. July 15, 2002). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 2730 (Graham, D-Fla.) (water resources) would modify certain water resources projects for the Apalachicola, Chattahoochee, and Flint Rivers in Alabama, Florida, and Georgia. 148 Cong. Rec. S6867 (daily ed. July 16, 2002). The bill was referred to the Committee on Environment and Public Works.
  • S. 2731 (Corzine, D-N.J.) (National Heritage Area) would establish the Crossroads of the American Revolution National Heritage Area in New Jersey. 148 Cong. Rec. S6867 (daily ed. July 16, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2734 (Kerry, D-Mass.) (farmer assistance) would provide emergency assistance to non-farm small business concerns that have suffered economic harm from the devastating effects of drought. 148 Cong. Rec. S6867 (daily ed. July 16, 2002). The bill was referred to the Committee on Small Business and Entrepreneurship.
  • S. 2743 (Kyl, R-Ariz.) (water rights) would approve the settlement of the water rights claims of the Zuni Indian Tribe in Apache County, Arizona. 148 Cong. Rec. S6947 (daily ed. July 17, 2002). The bill was referred to the Committee on Indian Affairs.
  • S. 2744 (DeWine, R-Ohio) (National Aviation Heritage Area) would establish the National Aviation Heritage Area. 148 Cong. Rec. S6947 (daily ed. July 17, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2745 (Bennett, R-Utah) (land exchange) would provide for the exchange of certain lands in Utah. 148 Cong. Rec. S6947 (daily ed. July 17, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2749 (Corzine, D-N.J.) (highlands stewardship area) would establish the Highlands Stewardship Area in the states of Connecticut, New Jersey, New York, and Pennsylvania. 148 Cong. Rec. S6947 (daily ed. July 16, 2002). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 2768 (Hagek, R-Neb.) (agriculture) would provide to agricultural producers emergency livestock assistance and assistance for control of grasshoppers and Mormon crickets. 148 Cong. Rec. S7164 (daily ed. July 22, 2002). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 2773 (Bingaman, D-N.M.) (water resources) would authorize the Secretary of the Interior to cooperate with the High Plains Aquifer states in conducting a hydrogeologic characterization, mapping, modeling and monitoring program for the High Plains Aquifer. 148 Cong. Rec. S7226 (daily ed. July 23, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2776 (Bingaman, D-N.M.) (archaeological sites) would provide for the protection of archaeological sites in the Galisteo Basin in New Mexico. 148 Cong. Rec. S7226 (daily ed. July 23, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2780 (Feingold, D-Wis.) (CWA) would amend the CWA to clarify the jurisdiction of the United States over waters of the United States. 148 Cong. Rec. S7308 (daily ed. July 24, 2002). The bill was referred to the Committee on Environment and Public Works.
  • S. 2786 (Allard, R-Colo.) (water resources) would provide a cost-sharing requirement for the construction of the Arkansas Valley Conduit in Colorado. 148 Cong. Rec. S7308 (daily ed. July 24, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2788 (Daschle, D-S.D.) (Wind Cave National Park) would revise the boundary of the Wind Cave National Park in South Dakota. 148 Cong. Rec. S7308 (daily ed. July 24, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 5114 (Smith, R-Tex.) (flooding) would make emergency supplemental appropriations for fiscal year 2002 to provide relief from damages caused by flooding in the Guadalupe River valley in 2002. 148 Cong. Rec. H4574 (daily ed. July 12, 2002). The bill was referred to the Committee on Appropriations.
  • H.R. 5123 (Hunter, R-Cal.) (water management) would address certain matters related to Colorado River water management and the Salton Sea by providing funding for habitat enhancement projects at the Salton Sea. 148 Cong. Rec. H4605 (daily ed. July 15, 2002). The bill was referred to the Committee on Resources.
  • H.R. 5125 (Miller, R-Cal.) (American battlefield protection) would amend the American Battlefield Protection Act of 1996 to authorize the Secretary of the Interior to establish a battlefield acquisition grant program. 148 Cong. Rec. H4605 (daily ed. July 15, 2002). The bill was referred to the Committee on Resources.
  • H.R. 5129 (Boyd, D-Fla.) (water resoruces) would modify certain water resources projects for the Apalachicola, Chattahoochee, and Flint Rivers in Alabama, Florida, and Georgia. 148 Cong. Rec. H4765 (daily ed. July 16, 2002). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 5136 (Hunter, R-Cal.) (reclamation and wetlands projects) would amend the Salton Sea Reclamation Act of 1998 to reauthorize activities relating to river reclamation and wetlands projects for the Alamo River and New River, Imperial County, California. 148 Cong. Rec. H4765 (daily ed. July 16, 2002). The bill was referred to the Committee on Resources.
  • H.R. 5137 (Jones, R-N.C.) (shoreline protection) would authorize the Secretary of the Army to make beneficial use of dredged material for shoreline protection and restoration. 148 Cong. Rec. H4765 (daily ed. July 16, 2002). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 5146 (Gilman, R-N.Y.) (Highlands Stewardship Area) would establish the Highlands Stewardship Area in the States of Connecticut, New Jersey, New York, and Pennsylvania. 148 Cong. Rec. H4872 (daily ed. July 17, 2002). The bill was referred to the Committee on Resources.
  • H.R. 5148 (Hobson, R-Ohio) (National Aviation Heritage Area) would establish the National Aviation Heritage Area and provide for other purposes. 148 Cong. Rec. H4872 (daily ed. July 17, 2002). The bill was referred to the Committee on Resources.
  • H.R. 5151 (Paul, R-Tex.) (coastal barrier resources) would exclude certain properties from the John H. Chafee Coastal Barrier Resources System. 148 Cong. Rec. H4872 (daily ed. July 17, 2002). The bill was referred to the Committee on Resources.
  • H.R. 5169 (Young, R-Alaska) (CWA) would amend the CWA to enhance the security of wastewater treatment works. 148 Cong. Rec. July 22, 2002 (daily ed. July 22, 2002). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 5172 (Baird, D-Wash.) (White Salmon River) would designate a portion of the White Salmon River as a component of the National Wild and Scenic Rivers System. 148 Cong. Rec. H5086 (daily ed. July 22, 2002). The bill was referred to the Committee on Resources.
  • H.R. 5180 (Hansen, R-Utah) (land conveyance) would direct the Secretary of Agriculture to convey certain real property in the Dixie National Forest in Utah. 148 Cong. Rec. H5194 (daily ed. July 23, 2002). The bill was referred to the Committee on Resources.
  • H.R. 5183 (Barcia, D-Mich.) (CWA) would amend the CWA to authorize appropriations for sewer overflow control grants. 148 Cong. Rec. H5194 (daily ed. July 23, 2002). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 5185 (Gallegly, R-Cal.) (wildfires) would remove a restriction on the authority of the Secretary of Agriculture and the Secretary of the Interior to enter into agreements with any federal agency to acquire goods and services directly related to improving or using the wildfire fighting capability of those agencies. 148 Cong. Rec. H5194 (daily ed. July 23, 2002). The bill was referred to the Committees on Agriculture, and Resources, and Government Reform.

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 Bank approved a $108.2 million credit for a project that is indeed to address forestry practices in India's Andhra Pradesh state.
  • The Multilateral Fund that helps developing countries implement the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer needs almost $600 million over the next three years to continue its work, United Nations officials said. See http://www.unep.org/Documents/Default.asp?DocumentID=255&ArticleID=3099
  • A group of agricultural and conservation groups began Monterrey Bridge, an initiative intended to promote discussion of the topics at the upcoming World Summit on Sustainable Development (WSSD). See http://www.futureharvest.org/news/monterrey.shtml
  • There were unconfirmed reports that Secretary of State Colin Powell will head the U.S. delegation to the WSSD. President Georege W. Bush will not attend.
  • Japan said it would partially fund the cost of remediation of unused pesticides in Mozambique that were originally obtained through Japanese financial aid.
  • The U.N. Convention to Combat Desertification held a conference in Windhoek, Namibia, attended by states that are party to the treaty. See http://www.namibian.com.na/2002/july/news/0271BB3A5E.html
  • The U.N. Environment Program issued the report The Role of Financial Institutions in Sustainable Mineral Development.
  • Efforts to remediate a former pesticide plant in Porto Romano, Albania, are being thwarted by the influx of economic migrants who are living in the abandoned factory and nearby, according to the Christian Science Monitor. "We know that the site is polluted, that we're endangering our health and that of our children by living here, but where could we go? Here, we can live without having to pay anything," one resident said. See http://www.csmonitor.com/2002/0712/p08s01-woeu.html
  • The U.S.-Canada International Joint Commission said in its 2002 Report Card that the governments have, since the Commission's last report in 1998, been "deficient" in addressing transboundary air quality problems. See http://www.ijc.org/ijcweb-e.html
  • Former British U.N. Ambassador Crispin Tickell, addressing the Society for Conservation Biology, said he did not expect that the WSSD would be successful. Tickell, director of Oxford University's Green College Center for Environmental Policy and Understanding, said that "For change, we need three factors: leadership from above, pressure from below or some exemplary catastrophe. Do we know where we are going? Not yet. The juggernaut of conventional wisdom rolls on. Can we cope with the problems raised by the unstable and unsustainable society we have created for ourselves? My answer is also, 'Not yet.'" See http://news.bbc.co.uk/hi/english/sci/tech/newsid_2129000/2129583.stm

CLIMATE CHANGE

  • Discussions were held in Tokyo involving representatives of the U.N., the U.N. Intergovernmental Panel on Climate Change, and signatories to the Kyoto Protocol regarding the second round of reduction targets that are slated to begin after 2012.
  • Asian energy ministers met in Bangkok to discuss greenhouse gas emission reduction strategies.
  • Environment Business Australia, a business group, issued a report claiming that the country's refusal to ratify the Protocol would have adverse economic impacts. "Australia could find that our (perceived) role of 'deputy sheriff' to the USA leaves us with fewer environment technology markets, without carbon trading partners, and with decreasing trade with ratifying countries in areas such as agriculture and forestry."
  • Brazil ratified the Protocol. President Fernando Henrique Cardoso said he would urge other South American nations to do likewise. New Zealand's Energy Minister, Pete Hodgson, said his nation would not be in a position to ratify prior to the beginning of the WSSD, as originally planned. He said he strongly doubted the Protocol would come into force this year.
  • Canadian Prime Minister Jean Chrétien predicted that Canada would ratify later this year, but with conditions that give the country credits for the export of clean energy. A cabinet member said that continued European Union opposition to the proposal would mean non-ratification.
  • Two disappointing reports were issued in Britain. A parliamentary report said that the nation, which currently generates 2.8% of its electricity from renewable sources, would not meet a 5% target set for 2003 and unless dramatic steps are taken would not reach a goal of 10% by 2010. And a report issued by Cambridge Econometrics said the nation was not likely to meet its Kyoto reduction targets because the recent closure of some nuclear power plants was resulting in increased use of coal as a fuel.
  • Australian and Canadian researchers said that a 1970-85 drought that ravaged Africa's Sahel region, killing 1.2 million, could have resulted from sulfur dioxide emissions in the United States and Europe. Aerosol drift created clouds that reduced rainfall. Other scientists think that overgrazing and the El Nino phenomenon are responsible.
  • Scientists meeting in Switzerland said that a Kyoto-type agreement is necessary to reduce pollutants that lead to the formation of ozone gas. Guy Brasseur, director of the Max Planck Institute of Meteorology in Germany, said "we need to understand how it is produced and how it is destroyed, where it is coming from and where it is going to." He noted that "we don't quite know how much ozone we had 100 or 150 years ago because we had almost no measurements, and not knowing what is the natural ozone layer, it's very difficult to say how much it has changed." But he stressed that it is estimated that ozone concentration in the northern hemisphere has doubled over the last century. Ozone is not addressed by the Kyoto Protocol. "We need to mitigate these emissions and take action so that carbon monoxide, nitrogen oxide, methane and hydrocarbons are not emitted in too large quantities," Brasseur said.

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

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

ELR STAFF

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