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Weekly Update Volume 32, Issue 24

08/26/2002

LITIGATION

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

NATIONAL PARKS OVERFLIGHTS ACT, GRAND CANYON, AIRCRAFT NOISE, LIMITATIONS RULE:

The D.C. Circuit rejected an air tour association's challenges to an FAA rule limiting the number of air tours over Grand Canyon National Park, but granted environmental groups' challenges to the rule's definition of "substantial restoration of natural quiet" and the noise methodology used by the FAA. The National Parks Overflights Act requires DOI to submit to the FAA recommendations for aircraft noise reduction and restoration of natural quiet in the Park. As part of the Act's requirements, the National Park Service (NPS), submitted a report to Congress in 1994 defining what the restoration of natural quiet entailed. Applying these principles, the FAA issued a rule that adopted this definition. Subsequently, the FAA adopted other rules in addition to or amending the original rule. One of these additional rules is the Limitations Rule, which caps the total number of commercial air tours conducted in the Park. The association and the groups challenged the rule. The association challenged the rule's definition of "natural quiet," the acoustic methodology that justifies the rule, the failure of the FAA to adopt a quiet technology rule, violations of the Regulatory Flexibility Act (RFA), and the rule's impact on the elderly and the disabled. The rule did include an NPS amendment to the definition of "natural quiet" that changes the threshold for measuring natural quiet in part of the Park. However, the NPS concluded that such a change was necessary to protect all Park uses, and the NPS provided a reasoned analysis for the change. Likewise, the FAA and the NPS provided a reasonable explanation for the noise methodology used to craft the rule. Further, although Congress required the FAA to designate quiet aircraft technology by April 5, 2001, Congress also allowed the FAA to explain in a report why meeting such a deadline was impossible. The FAA provided Congress with such a report; therefore, the FAA's failure to promulgate the quiet aircraft technology does not render the rule arbitrary and capricious. Moreover, the FAA's RFA analysis was reasonable, and the association's argument that the rule does not consider the disabled or the elderly are based on erroneous facts and do not consider the existing Park programs for the elderly and disabled. However, as the groups' argued, the FAA's use of a definition of "substantial restoration of natural quiet" that relies on determining quiet for an average annual day is inconsistent with the 1994 NPS definition of the term based on any given day, not the annual average. In addition, FAA failed to provide a reasoned explanation why its noise methodology did not include noise from non-tour aircraft such as commercial jets, general aviation, and military flights. Therefore, the FAA's noise methodology is arbitrary and capricious and must be remanded to the agency. U.S. Air Tour Ass'n v. Federal Aviation Administration, No. 00-1201 (D.C. Cir. Aug. 16, 2002) (22 pp).

CONSTITUTIONAL LAW, COMMERCE CLAUSE, HUNTING:

The Ninth Circuit held that Arizona's cap on nonresident hunting of antlered deer and bull elk substantially affects and discriminates against interstate commerce and remanded the case for further proceedings to determine whether Arizona has met its burden of showing that it has no other means to advance its legitimate interests. Contrary to the district court's finding, hunting of bull elk and antlered deer in Arizona substantially affects interstate commerce, as do Arizona’s restrictions on that hunting by nonresidents. Thus, the dormant Commerce Clause applies to this case. Arizona, however, has legitimate interests in regulating hunting to conserve its population of game and maintain recreational opportunities for its citizens. The protection of wildlife and other natural resources of a state are some of the state’s most important interests. Additionally, it has long been recognized that a state has a legitimate interest in providing enjoyment to its own people. Nevertheless, Arizona has yet to demonstrate that the cap is narrowly tailored to its legitimate ends. The court, therefore, remanded the case for further proceedings. Conservation Force, Inc. v. Manning, Nos. 00-17082, -17394 (9th Cir. Aug. 20, 2002) (24 pp.).

CWA, NPDES PERMITS, AGRICULTURAL EXEMPTIONS:

The Eleventh Circuit affirmed a district court decision that a farm's discharges to Lake Okeechobee in Florida fall within the agricultural exemptions to the CWA's NPDES requirements for discharges. The CWA requires a property owner discharging from a point source to have an NPDES permit, but the CWA specifically exempts agricultural stormwater discharges and return flows from irrigation agriculture from the NPDES requirement. Evidence established that the sources of water discharged from the farm were rainfall, groundwater withdrawn into the farm's canals from drained areas of the lake, and seepage from the lake. The fact that the stormwater discharged by the farm is pumped into the lake rather than flowing naturally does not remove it from the exemption. Moreover, the discharged groundwater and seepage are return flow from irrigation agriculture since the farm's canals irrigate sugar cane using flood irrigation. Flood irrigation is exempted from permitting requirements in the same manner as traditional irrigation. Fishermen Against the Destruction of the Environment v. Closter Farms, Inc., No. 01-11932 (11th Cir. Aug. 7. 2002) (4 pp.).

NEW MEXICO FOREST CONSERVATION ACT (FCA), PREEMPTION, LEGISLATIVE DELEGATION:

The Tenth Circuit reversed a district court decision that the New Mexico FCA preempted a county timber harvest ordinance and that the ordinance's environmental assessment provision included an invalid delegation of unlimited power to the county and zoning commission. The FCA does not expressly or impliedly preempt the county ordinance. Under state law, in order to expressly preempt a local ordinance, the legislature must clearly state its intention to do so. Although the FCA does provide the state forestry division with exclusive authority to enforce the state's forestry laws, the FCA does not contain language that unambiguously reflects an intent to expressly preempt local legislation regarding timber harvests. Similarly, the FCA does not impliedly preempt the county ordinance by occupying the entire field of regulation relating to timber harvesting in the state. The FCA's primary focus is the minimization of damage to the permitted land, but the FCA does not address the types of development issues with which local governments are traditionally concerned. The main focus of the ordinance is on local issues, such as erosion caused by timber harvesting, water quality, soil protection, and other local land uses. Likewise, the FCA's permit and clearcutting requirements do not impliedly preempt the ordinance's permit and clearcutting provisions due to conflict. The ordinance has stricter permit requirements for obtaining a timber permit, but the mere fact that an individual may be required to obtain local as well as state approval for its activities does not result in a conflict. Conflicts occur where the ordinance allows an act that the general law prohibits or prohibits an act that the general law allows. Neither the ordinance's permit or clearcutting requirements satisfy this standard. Although the ordinance bans clearcutting without a variance, the FCA does not establish an affirmative right to clearcut. In addition, the ordinance provision that the county zoning commission "may order an environmental assessment" does not constitute an invalid delegation of legislative authority to the county. The commission does not have the unlimited power to decide when an environmental assessment will be ordered. Rather, the commission may order an assessment only when it finds a significant environmental impact or where proposed and existing timber harvests, assessed together, will have a significant impact on the environment, public and private property, and public health, safety, and welfare. This power is capable of review and not arbitrary. Rancho Lobo, Ltd. v. Devargas, No. 01-2196 (10th Cir. Aug. 20, 2002) (10 pp).

INSURANCE, LOST POLICIES, NOTICE:

The Second Circuit reversed a district court judgment holding that an insurer was not required to defend a manufacturer for contamination at two sites because the manufacturer had not provided timely notice of occurrence, but affirmed the district court's judgment in all other respects. After 4 environmental site claims and 10 additional lawsuits related to one of those sites was filed against the manufacturer, the manufacturer brought the instant action against the insurer claiming that the insurer was obligated to provide insurance coverage under certain lost insurance policies issued to the manufacturer's former parent company. The district court did not err in finding that the manufacturer demonstrated that it made a diligent but unsuccessful search and inquiry for the missing policies. Further, the manufacturer proved the existence and terms of the policies by clear and convincing evidence. There was overwhelming documentary and testimonial evidence establishing the existence of the policies and the fact that they were the insurer's policies. Contrary to the district court's decision, however, the insurer waived its right to deny coverage with respect to two of the sites on the ground that the manufacturer's notices were untimely. By the time of its answer, the insurer had determined that if it had issued policies covering the manufacturer, then those policies contained provisions found in the insurer's "typical" policies. Inasmuch as the notice provisions the insurer now seeks to enforce are found in such policies, the insurer's failure to assert them at the time it disclaimed coverage based on other provisions of such policies waived its right to do so now. Nevertheless, the district court properly granted summary judgment to the insurer on the issue of its duty to defend some of the claims asserted in underlying bodily injury actions based on undisputed evidence that established that there was no set of facts under which those claims would or could be covered by the insurer's policies. Burt Rigid Box, Inc. v. Travelers Property Casualty Corp., Nos. 01-7230(L), -7649(XAP) (2d Cir. Aug. 16, 2002) (11 pp.).

FORUM NON CONVENIENS, OIL EXPLORATION:

The Second Circuit affirmed the dismissal of two class actions brought by residents of Peru and Ecuador against a U.S. oil company for environmental and personal injuries arising out of the company's oil exploration and extraction operations between 1964 and 1992. The residents sought money damages under theories of negligence, public and private nuisance, strict liability, medical monitoring, trespass, civil conspiracy, and violations of the Alien Tort Claims Act. The district court dismissed the case for forum non conveniens, determining that Ecuador was an adequate alternative forum and that the balance of private and public interest factors tilted in favor of dismissal. On appeal, the residents argued that Ecuador does not offer an alternative forum because Law 55, which provides that lawsuits filed outside Ecuador will terminate any jurisdiction of Ecuadorian judges over the matter, precludes them from proceeding in Ecuadorian courts. The court, however, is skeptical as to the law's retroactivity, as well as its application to cases dismissed for forum non conveniens. Furthermore, the Ecuadorian Constitutional Court has since declared Law 55 unconstitutional. Similarly, there is no merit in the residents' argument that Ecuadorian courts are unreceptive to tort claims. The record shows that several plaintiffs have recovered judgments against oil companies for claims arising out of the very facts here alleged, and other U.S. courts have found Ecuador to be an adequate forum for hosting tort suits. Moreover, while Ecuador's judicial procedures may be less streamlined than the United States', that does not make Ecuador's procedures ineffective or render Ecuador inadequate as an alternative forum. In addition, the district court was within its discretion in concluding that the private and public interest factors tilt in favor of dismissal. However, the district court must modify its ruling to make dismissal conditional on the oil company's agreement to waive any defense based on the statute of limitations for limitation periods expiring between the date of filing the U.S. actions and one year, rather than 60 days set forth in the original ruling. Aguinda v. Texaco, Inc., Nos. 01-7756 (L), -7758 (C) (2d Cir. Aug. 16, 2002) (9 pp.).

WATER SUPPLY ALLOCATION, MOTION TO INTERVENE:

The Eleventh Circuit reversed a district court judgment denying Florida's and a hydropower company's motions to intervene as defendants in Georgia's lawsuit against the U.S. Army Corps of Engineers to compel the Corps to increase the water supply available to Atlanta. Florida's and the hydropower company's motions to intervene were timely. In addition, both parties have a direct, substantial, and legally protectable interest in the subject matter of Georgia's lawsuit. Georgia's water supply request would result in a diminution of the overall production of hydropower. In addition, the remedy sought in Georgia's lawsuit will have a practical effect on water flowing in the Chattahoochee River, water that is part of the Apalachicola-Chattahoochee-Flint (ACF) Basin and to which Florida has a right. Georgia argued that even if Florida had a legal interest in the matter sufficient for intervention, it is not entitled to intervention because the disposition of its lawsuit will not impair or impede Florida's ability to protect that interest under ACF Compact negotiations between Alabama, Florida, and Georgia. It is not clear, however, what impact an order compelling the Corps to enter the long-term contracts Georgia seeks in this lawsuit would have on the Compact negotiations. Further, there exists the possibility that the historical pattern of extending the Compact deadline will continue and that the three states will remain at an impasse regarding the allocation of water. Thus, the disposition of this action could impair or impede Florida's interests until such time, if any, that the parties reach an agreement under the Compact. Additionally, contrary to Georgia's argument, Florida has no clear-cut and compulsory right to be heard by the U.S. Supreme Court. As long as the members of the Compact continue to negotiate, it seems unlikely that the Supreme Court would choose to hear an equitable apportionment claim involving the ACF Basin. Lastly, the Corps cannot adequately represent Florida's or the hydropower company's interests in Georgia's lawsuit. Thus, the district court erroneously denied their motions to intervene as of right. Georgia v. United States Army Corps of Engineers, No. 02-10135 (11th Cir. Aug. 21, 2002) (15 pp.).

INTERVENTION, TIMELINESS, NOTICE:

The Ninth Circuit reversed a district court denial on timeliness grounds of environmental groups' motion to intervene in a suit between the United States and a county regarding the status of a U.S. Forest Service road. In 1999, the Forest Service sued a citizen group to prevent it from restoring the road, which ran along the habitat of the threatened bull trout. The court joined the county as a party that claimed rights to the road, and ordered the United States and the county to mediate the dispute. The mediation was confidential and eventually led to a tentative agreement where the United States agreed that it would not contest that the county had a right of way to the road, and the county agreed that any work it did on the road would be done with Forest Service approval and in compliance with federal environmental laws. When the agreement was reached, the confidentiality was lifted. The groups subsequently sought intervention, but the district court held that their intervention was untimely, coming 18 months after commencement of the Forest Service suit. However, until parties have notice that the government may not be representing their interests, parties are entitled to rely on the presumption that their interests are being represented by the government. The groups acted as soon as they had notice the proposed settlement was contrary to their interests. The mediation proceedings had been conducted under an order of confidentiality and the settlement negotiations were not conducted in court. By entering confidential settlement discussions, the government does not give notice that it may not be adequately representing the interests of any group of citizens. Therefore, the district court decision is reversed and remanded with instructions to allow the groups to intervene. United States v. Carpenter, No. 01-16326 (9th Cir. Aug. 12, 2002) (6 pp.).

BANKRUPTCY, ABSTENTION, CONTRACTS:

A district court abstained from hearing a breach of contract claim between a bankrupt company and a county resource recovery agency. The company and the agency entered into a solid waste disposal agreement, which included a bond requirement that if the bond fell below investment rating, the company had 30 days to provide credit enhancement. The company failed to provide enhancement when its credit rating fell, and the agency notified the company that it was terminating the agreement and was instituting proceedings that would require the company to turn the company's operations over to the agency. The company filed a breach of contract claim against the agency in the Onondaga County Supreme Court, but subsequently filed for Chapter 11 bankruptcy in the U.S. Bankruptcy Court for the Southern District of New York. The company then moved to remove the breach of contract claim to the Northern District of New York, and the agency filed a motion to remand or abstain and remand the breach of contract claim to the Onondaga Supreme Court. The company then filed a motion seeking transfer of the breach of contract claim to the U.S. Bankruptcy Court for the Southern District of New York to consolidate the breach of contract claim with its bankruptcy proceeding. The case was properly removed and the Northern District of New York possessed jurisdiction over the proceeding under 28 U.S.C. §1334(b) because the breach of contract claim is a proceeding related to the company's Chapter 11 bankruptcy claim. The potential finding that the contract was breached and recovery of damages could alter the company's debtor rights and liabilities or impact the administration of the bankrupt estate. However, the case satisfies all six conditions for mandatory abstention in 28 U.S.C. §1334(c)(2). The agency filed a cross motion for abstention after the company filed a removal action; the removed case involves only the state breach of contract claim; the case is related to a bankruptcy proceeding but did not arise under the Bankruptcy Code; the removed case could not have been brought in federal court absent bankruptcy jurisdiction; the removed case was commenced in state court; and the case can be timely adjudicated in state court. Thus, the court abstained from jurisdiction and remanded the breach of contract claims to the Onondaga Supreme Court. Covanta Onondaga Ltd. v. Onondaga County Resource Recovery Agency, No. 02-CV-0497 (N.D.N.Y. Aug. 13, 2002) (Munson, J.) (10 pp.).

TOXIC TORTS, CONSTITUTIONAL LAW, STATUTE OF LIMITATIONS, CERCLA §309 FEDERALLY REQUIRED COMMENCEMENT DATE (FRCD):

The Second Circuit upheld a district court decision that the CERCLA §309 FRCD does not violate the Commerce Clause or the Tenth Amendment, but held that the district court's grant of summary judgment to companies that contributed to a landfill is precluded by remaining triable issues of fact as to when individuals suing the companies should have known that the landfill was the cause of their injuries. The individuals brought numerous state-law survival, wrongful death, personal injury, and loss-of-consortium claims against the companies, but the district court held that their claims were barred by the statute of limitations because the individuals brought their claims well after they knew or should have known that the landfill was the cause of their injuries. The individuals appealed, and the companies cross appealed arguing that the FRCD was unconstitutional and that the district court's application of the FRCD to survival and wrongful death claims was contrary to CERCLA's language. Although §309 includes the phrase "when the plaintiff knew," the FRCD applies to any action brought under state law for personal injury or property damages, and a "plaintiff" need not be the person who suffered the personal injury but only a person who has standing to bring a survival claim. Similarly, although the state does not characterize wrongful death claims as personal injury claims, wrongful death claims fall within Congress' intent of protecting the public from harm from hazardous wastes. Moreover, the FRCD does not violate the Commerce Clause. CERCLA is valid under the Commerce Clause as a regulation of the disposal of hazardous waste that threatens interstate commerce, and the FRCD is an integral and authorized part of CERCLA's regulatory scheme. Likewise, the FRCD does not violate the Tenth Amendment. The FRCD requires no action by state legislatures, Congress may create federal law--including statutes of limitations--that state courts are obligated to adjudicate, and the FRCD only requires the application of federal law in state courts. However, the district court erroneously imputed to the FRCD a standard of reasonable suspicion. The FRCD requires that the statute of limitations begins when plaintiffs know or reasonably should have known the cause of their personal injuries, not when they are reasonably suspicious of the cause. Similarly, the district court erroneously held that state law required the individuals to show that the state of medical, technological, and scientific information was insufficient such that it was not possible to discover their injuries within the statute of limitations from the time of the discovery of their injuries. According to state law and commentary on that law, the standard requires scientific knowledge reasonably available to the plaintiff. Further, the district court also did not view the evidence in the light most favorable to the individuals as required by the summary judgment standard. Although the state conducted many studies of the landfill and newspapers reported extensively on the possible health hazards at the landfill, there is no evidence in the record that the materials in the landfill cause cancer and, in fact, the record is replete with evidence that the state repeatedly assured residents that their was no evidence of a cause of cancer. Thus, because there is no definitive evidence of a link between cancer and the landfill, there is no way to determine as a matter of law when the individuals should have known about the cancer risks posed by the landfill. In addition, the district court properly applied a one-year statute of limitations to the individuals' survival claims. The FRCD only applies with respect to the date a claim accrues, not the length of the statute of limitations, which the state sets at one year. Freier v. Westinghouse Electric Corp., Nos. 00-7724(L), -7728(XAP) (2d Cir. Aug. 15, 2002) (35 pp.).

CLASS ACTIONS, CLASS CERTIFICATIONS, RCRA:

A district court certified as a class individual home owners' RCRA claims against a corporation for lack of proper notice. A tricloroethylene (TCE) leak allegedly from the corporation contaminated the owners' property. The owners sought certification as a class of owners who reside within the plume of TCE contamination. The owners satisfy Fed. R. Civ. P. Rule 23(a)'s numerosity, commonality, typicality, and adequacy of representation requirements for class certification. The class is 2,000 people, which satisfies numerosity. Although factual differences exist between the owners' properties, the characteristics of the class members need not be identical if there is a common nucleus of operative fact that the defendant has engaged in some standardized conduct towards the proposed class members. Here, all the owners allege the corporation should be held liable for the TCE contamination of their property. Similarly, the owners' claims arise out of the same event--the corporation's alleged TCE releases--and, thus, the claims are typical. Moreover, any unique defenses that the corporation could offer to individual owners is not sufficiently burdensome to defeat typicality. Although a scientific expert determined that some of the proposed owners do not reside within the contamination plume, this discrepancy does not defeat adequate representation. The owners that fall outside the plume do not fall far from the plume, and the class will bear the burden at trial of establishing that all owners are affected by the contamination. Likewise, despite the fact that the owners' wells tested below the TCE level considered unhealthy by the state, the adequacy of representation is not defeated by a lack of meritorious claims. The owners need only show that they would be entitled to relief, not that they will be entitled to relief. Also, none of the owners tested above the state standard for TCE contamination, and the question of whether the corporation should be held liable for the TCE level is a determination for the factfinder. Further, common questions of fact in the owners' cause of action predominate because the cause of action arises from the same alleged cause of conduct by the corporation, and class certification is the most efficient and manageable way to proceed in an action against the corporation. Therefore, the requirements of Rule 23(b)(3) have been met. In addition, although one count of the owners' RCRA claim against the corporation did not specifically mention the RCRA section allegedly violated, the corporation had adequate notice to inform it of the alleged violation. Thus, the RCRA citizen suit notice requirements have been met. Similarly, a state environmental agency lawsuit against the corporation under the state environmental law does not preclude the owners' RCRA citizen suit. Mejdreck v. Lockformer, No. 01 C 6107 (N.D. Ill. Aug. 12, 2002) (Hibbler, J.) (26 pp.).

CERCLA, FED. R. CIV. P. RULE 11:

A district court denied a corporation's Rule 11 motion to recover attorneys fees and costs from a gas company that the corporation sought contribution from under CERCLA. The gas company manufactured gas on a site until 1973 when it sold the site to the corporation. In 1999, after years of debate and negotiation, the corporation and EPA entered into a CERCLA consent decree for the cleanup of the site. In 2000, the corporation sought CERCLA contribution from the gas company. Although its liability under CERCLA as a site owner that disposed of hazardous materials was relatively clear, the gas company refused to admit liability in its answer to the corporation's contribution action, in the court scheduling statement, and at the scheduling conference. In light of these denials, the corporation filed a partial summary judgment motion on the issue of the gas company's liability, but the gas company filed no opposition to the motion and was, thereby, found liable as a CERCLA owner. The corporation moved for Rule 11 sanctions against the gas company in the form of the attorneys fees and costs associated with its filing the motion for partial summary judgment. However, although the threshold requirement that the gas company make a presentation in court is met, the corporation failed to prove that the gas company violated a specific subsection of Rule 11(b). The corporation argued that the company violated Rule 11(b)(4) by denying factual contentions that are warranted on the evidence, but the gas company only denied liability, not the factual contentions, such as release, that constitute CERCLA liability. Likewise, the corporation also argued that the gas company violated Rule 11(b)(4) by making a presentation to the court with the improper purpose of delay, but despite the unreasonable delay caused by the gas company's denials, the corporation cannot show that the gas company acted with an improper purpose. Thus, the corporation's Rule 11 motion fails, but the court does note that the corporation can seek attorneys fees and costs under state law. General Electric Co. v. Berkshire Gas Co., No. 00-30164-MAP (D. Mass. Aug. 9, 2002) (Ponsor, J.) (14 pp.).

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

THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register.

AIR:

  • EPA proposed evaporative emissions standards for marine vessels that use spark-ignition engines, proposed new emission standards for highway motorcycles, and announced its plans to propose standards in the future regulating exhaustive emissions from spark-ignition marine engines. 67 FR 53049 (8/14/02).
  • EPA proposed NESHAPs for miscellaneous metal parts and products surface coating operations located at major sources of hazardous air pollutants. 67 FR 52779 (8/13/02).
  • EPA withdrew amendments to the NESHAPs for the secondary aluminum production industry that were promulgated on June 14, 2002. 67 FR 52616 (8/13/02).
  • EPA denied petitions for reconsideration of the emission guidelines for existing small municipal waste combustion units. 67 FR 54421 (8/22/02).
  • EPA entered into a proposed settlement in the case entitled Port of Walla Walla v. EPA, No. 01-70576 (9th Cir.), in which EPA's previous finding that the Wallula, Washington, nonattainment area failed to attain the NAAQS for particulate matter with an aerodynamic diameter of 10 microns or less was challenged. 67 FR 53923 (8/20/02).
  • EPA announced the availability of SAE Standardized Practice J2534, which, under EPA's June 8, 2001, proposed revisions to regulations requiring availability of information for use of on-board diagnostic systems and emission-related repairs, manufacturers must comply with for "pass-through reprogramming" for model year 2003 and later on-board diagnostic-equipped vehicles with reprogramming capabilities. 67 FR 52696 (8/13/02).
  • EPA proposed to update a portion of the outer continental shelf air regulations for which the South Coast air quality management district and Ventura County air pollution control district are the designated corresponding onshore areas. 67 FR 53546 (8/16/02).
  • EPA granted California its request for a waiver of federal preemption for its onboard refueling vapor recovery regulations. 67 FR 54180 (8/21/02).
  • EPA changed the effective date for the reclassification and determination of nonattainment for the Baton Rouge, Louisiana, ozone nonattainment area to October 4, 2002. 67 FR 53882 (8/20/02).
  • EPA proposed to determine that the Birmingham, Alabama, marginal ozone nonattainment area attained the one-hour ozone NAAQS by November 15, 1993, the date required by the CAA. 67 FR 54159 (8/21/02).
  • EPA redesignated the New Jersey portion of the New York-Northern New Jersey-Long Island nonattainment area to attainment for the carbon monoxide NAAQS. 67 FR 54574 (8/23/02).
  • EPA determined that San Diego, California, has attained the one-hour ozone air quality standard as required by the CAA. 67 FR 54580 (8/23/02).

HAZARDOUS & SOLID WASTE:

  • EPA proposed revisions to the National Environmental Performance Track Program. 67 FR 52674 (8/13/02).
  • EPA granted a petition submitted by the World Resources Company to exclude from RCRA's definition of solid waste concentrate material that is partially reclaimed from metal-bearing sludges and sold to smelters. 67 FR 52617 (8/13/02).
  • EPA granted a petition to exclude certain hazardous wastes generated at DOE's Savannah River site from the lists of hazardous wastes under RCRA. 67 FR 54124 (8/21/02).
  • EPA entered into a proposed de minimis settlement under CERCLA §122(g) in connection with the Peak Oil Superfund site in Florida. 67 FR 54207 (8/21/02).
  • EPA approved revisions to Florida's hazardous waste program under RCRA. 67 FR 53886, 67 FR 53889 (8/20/02).

MINING:

  • OSM proposed to approve an amendment to Iowa's abandoned mine land reclamation plan under SMCRA. 67 FR 52659 (8/13/02).
  • OSM proposed to approve an amendment to Iowa's regulatory program under SMCRA. 67 FR 52662 (8/13/02).
  • OSM proposed to approve an amendment to Kentucky's regulatory program under SMCRA. 67 FR 53539 (8/16/02).

NEPA COMPLIANCE:

  • The Forest Service adopted an interim directive to guide employees in complying with NEPA and CEQ regulations for certain actions that can be categorically excluded from documentation in an EA or EIS. 67 FR 54622 (8/23/02).

OCCUPATIONAL SAFETY:

  • OSHA announced that it is seeking comment on issues relevant to occupational exposure to hexavalent chromium. 67 FR 54389 (8/22/02).

PENALTIES:

  • EPA withdrew its direct final rule amending the final Civil Monetary Penalty Inflation Adjustment Rule, published on June 18, 2002 (67 FR 41343), because the Agency received adverse comment. 67 FR 53743 (8/19/02).

PESTICIDES:

  • EPA announced the availability of two documents: PRZM Field and Orchard Crop Scenario Metadata, and Standard Procedures for Conducting Quality Control and Quality Assurance for Pesticide Root Zone Model (PRZM) Field and Orchard Crop Scenarios. 67 FR 54206 (8/21/02).

RADIOACTIVE WASTE:

  • EPA announced the availability of DOE documents applicable to the characterization of transuranic radioactive waste from the Argonne National Laboratory-East site proposed for disposal at the Waste Isolation Pilot Plant. 67 FR 53330 (8/15/02).
  • EPA announced the availability of DOE documents applicable to the characterization of transuranic radioactive waste at the Los Alamos National Laboratory proposed for disposal at the Waste Isolation Pilot Plant. 67 FR 53331 (8/15/02).

TRANSPORTATION:

  • The Research and Special Programs Administration revised the transportation requirements for infectious substances. 67 FR 53117 (8/14/02).

WATER QUALITY:

  • EPA announced the availability of a final report titled Real-Time Monitoring for Toxicity Caused by Harmful Algal Blooms and Other Water Quality Perturbations. 67 FR 53001 (8/14/02).
  • NOAA announced a consistency appeal under CZMA §307 from New York's objections to the appellant's consistency certification for a U.S. Army Corps of Engineers permit to build a catwalk and dock at West Hampton Dunes. 67 FR 54410 (8/22/02).

WILDLIFE:

  • FWS determined that the Tumbling Creek cavesnail is an endangered species under the ESA. 67 FR 52879 (8/14/02).
  • FWS announced that it will reintroduce two federally listed endangered fishes--the duskytail darter and smoky madtom--and two federally listed threatened fishes--the yellowfish madtom and spotfin chub--into the Tellico River in Monroe County, Tennessee. 67 FR 52420 (8/12/02).
  • FWS designated critical habitat for the Newcomb's snail under the ESA. 67 FR 54025 (8/20/02).
  • FWS proposed to designate critical habitat for the Topeka shiner under the ESA. 67 FR 54261 (8/21/02).
  • FWS and the Forest Service made seasonal adjustments to the subsistence management regulations for public lands in Alaska in order to protect sockeye salmon escapement in three southeastern Alaskan lake systems and to remove unnecessary restrictions on salmon harvest by non-federally qualified users at Redoubt Lake. 67 FR 54572 (8/23/02).

DOJ NOTICES OF SETTLEMENTS:

  • Concerned Citizens for Nuclear Safety, Inc. v. U.S. Department of Energy, No. 94-1039 M (D.N.M. July 2, 2002). Under the CAA, a third supplemental consent decree will resolve plaintiffs' claims for the costs of monitoring an audit conducted in 2002 under a consent decree entered by the court on March 25, 1997. 67 FR 53363 (8/15/02).
  • United States v. Dutton-Lainson Co., No. 8:02CV366 (D. Neb. Aug. 7, 2002). A settling CERCLA defendant must implement EPA's selected remedial action for the Well #3 subsite of the Hastings Ground Water Contamination Superfund site in Hastings, Nebraska, must pay $333,119.76 in response costs, and must pay EPA's future oversight costs incurred at the site. 67 FR 53363 (8/15/02).
  • United States v. Union Pacific Railroad Co., No. 8:02-CV-368 (D. Neb. Aug. 6, 2002). A settling CERCLA defendant must implement EPA's selected remedial action for operable unit 5 of the Cleburn Street Well Superfund site in Grand Island, Nebraska, must pay $68,493.72 in past response costs, and must pay EPA's future oversight costs at operable unit 5. 67 FR 53363 (8/15/02).
  • United States v. Occidental Chem. Corp., No. 4:CV-98-0686 (M.D. Pa. Aug. 2, 2002). A settling CERCLA defendant that failed to comply with a 1997 unilateral administrative order must pay $561,000 in past and future U.S. response costs incurred or to be incurred at the Centre County Kepone Superfund site in State College, Pennsylvania, must make a good faith offer to another party of at least $220,000 as its appropriate share of the response actions to be performed under the unilateral administrative order or pay $220,000 to the EPA Hazardous Substance Superfund if that party rejects the defendant's good faith offer, must pay a $21,000 civil penalty, and must perform a supplemental environmental project at a cost of at least $84,000. 67 FR 54463 (8/22/02).

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

THE CONGRESS

Congress is currently in recess but will reconvene September 3, 2002.

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

  • A 77-page draft text prepared for the World Summit on Sustainable Development (WSSD) (which opens today) was described by environmental groups as "impenetrable and nebulous" and as "unintelligible." The U.S. delegation will be led by Secretary of State Colin Powell, who will announce a $4.5 billion aid package for Africa. See http://www.whitehouse.gov/news/releases/2002/08/20020819.html. Most of the money is not new, and the proposal was attacked by environmental groups and by U.S. Senator John Kerry (D-MA), who said "what passes for their agenda--shifting around funds from existing efforts and giving it a new name--sends a clear signal: the world's largest polluter isn't interested in finding a solution to global warming." For pre-Summit reporting, see http://www.msnbc.com/news/797465.asp?cp1=1, http://www.time.com/time/2002/greencentury/, http://www.iht.com/articles/68008.htm, and http://www.guardian.co.uk/worldsummit2002/earth/0,12341,774434,00.html
  • While environmental groups criticized President George W. Bush for not attending the WSSD, which will host approximately 100 world leaders and 40,000 delegates, conservative activists sent Bush a letter praising his non-attendance. See http://www.guardian.co.uk/worldsummit2002/story/0,12264,775542,00.html
  • United Nations (U.N.) Environment Program Executive Director Klaus Toepfer predicted a successful Summit, as did South African Foreign Affairs Minister Nkosazana Dlamini-Zuma. U.N. Economic and Social Commission for Western Asia environment adviser Hosny Khordagui said he was not optimistic, and South African Environment Minister Valli Moosa said significant divisions remain between developing and developed nations. For a description of ELI events and activities at the WSSD, see http://www.eli.org
  • Japanese Prime Minister Junichiro Koizumi planned to use the WSSD to announce a new aid package for southern Africa. British Prime Minister Tony Blair apparently intends to spend time lobbying world leaders to support an attack on Iraq.
  • The Stockholm Water Symposium was held in advance of the WSSD. See http://www.siwi.org/sws2002/symposiumframe.html
  • A Global Judges Symposium was also held as a pre-WSSD event. See http://www.unep.org/Documents/Default.asp?DocumentID=259&ArticleID=3110
  • The U.N. Environment Program's North American office and the World Resources Institute jointly issued a report which said that the U.S. and Canada are not doing enough to promote environmental goals in the rest of the world. See http://na.unep.net/geo/index.html
  • The Secretariat of the U.N. Convention on the Trade in Endangered Species said that Cuba had withdrawn a controversial proposal to trade shells of the endangered hawksbill turtle.
  • The International Energy Agency issued a report finding that 1.6 billion people do not have access to electricity. The number is expected to decrease only slightly over the next 30 years. See http://www.worldenergyoutlook.org/weo/pubs/weo2002/energypoverty.pdf
  • The European Union's Joint Research Center issued a study which concludes that the rate of deforestation, although high, is not as high as previously believed.
  • The World Health Organization called for a meeting to discuss recent determinations by Zambia, Zimbabwe, and Mozambique that they would not accept food aid containing genetically modified crops from the U.S. The U.S. State Department released a statement criticizing the actions. See http://www.state.gov/r/pa/prs/ps/2002/12898.htm
  • Donor countries infused $2.9 billion into the U.N. Global Environment Facility. See http://www.johannesburgsummit.org/html/whats_new/otherstories_gef_1408.html
  • The World Bank, in its annual World Development Report, said that immediate steps should be taken to reduce environmental risks resulting from poor policies and weak governance.
  • The Food and Agriculture Organization's World Agriculture: Towards 2015/2030 report predicts increased environmental risks from agricultural practices. See http://www.fao.org/docrep/004/y3557e/y3557e00.htm
  • An independent inspection panel of the World Bank concluded that a proposed Chad-Cameron oil pipeline presents significant environmental risk and would generate insignificant revenues for local economies.
  • The U.N. Economic and Social Commission for Asia and the Pacific issued a report describing deaths and disease resulting from the consumption of polluted drinking water in Asia.
  • The group Compassion in World Farming issued a report blaming so-called "factory farms" for environmental hazards in developing countries such as Brazil. See http://www.ciwf.co.uk/ and http://www.guardian.co.uk/food/Story/0,2763,778054,00.html
  • The World Trade Organization and the World Health Organization jointly issued a report that urged the taking of environmental objectives into account in the drafting of trade agreements. See http://www.wto.org/english/news_e/pres02_e/pr310_e.htm

CLIMATE CHANGE

  • Disastrous flooding in Germany lead to increased attention by political parties to the possible role of climate change.
  • Japan's Environment Ministry said it would propose a new framework for carbon dioxide reduction by developing countries.
  • Natural Resources Canada issued a report that stressed the impact of global warming upon Canada's water supplies.
  • A three-kilometer-thick accumulation of smog hovers over much of Asia and the Indian Ocean, according to the U.N. Environment Program. See http://www.iht.com/articles/67366.htm
  • The World Bank offered U.S. $8 million to a Thai sugar producing company in exchange for carbon credits. See http://www.bangkokpost.com/180802_News/18Aug2002_news20.html
  • In a speech, U.N. Environment Program Executive Director Klaus Toepfer said that the human role in global climate change could no longer be the subject of speculation.
  • Tuvaluan Prime Minister Sofatu Sopuaiga, joined by Cook Islands Prime Minister Robert Woonton, criticized Australia and the U.S. for rejecting the Kyoto Protocol. See http://www.abc.net.au/news/2002/08/item20020816001154_1.htm They also said that they plan to seek a regional prohibition on the shipment of nuclear waste through the Pacific Ocean.
  • Australian Prime Minister John Howard and Environment Minister David Kemp responded by saying that Australia is "very close" to meeting the current Kyoto target even in the absence of ratification. See http://www.theaustralian.news.com.au/common/story_page/0,5744,4910238%255E2702,00.html
  • Kemp's statement and math were criticized by environmental groups. See http://www.smh.com.au/articles/2002/08/15/1029113983306.html And a group of 250 economists said that Howard's contention that Australia's economy would suffer as a result of ratification was incorrect.

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

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