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Weekly Update Volume 32, Issue 30

10/28/2002

LITIGATION

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

CAA, SIPs, SOVEREIGN IMMUNITY:

A district court held that the Secretary of the Pennsylvania Department of Transportation and the Secretary of the Pennsylvania Department of Environmental Protection violated the CAA by failing to implement SIP-required emission standards for the state's enhanced vehicle inspection and maintenance (I/M) program. The SIP requires the commonwealth to employ specific pass/fail emission standards, known as cutpoints, for acceleration simulation mode testing as part of an enhanced I/M program for the Philadelphia ozone nonattainment area. The commonwealth failed to implement the final cutpoints, and an environmental group brought a CAA suit alleging that the secretaries, as the heads of the departments with a duty to implement the I/M program, violated the CAA. The secretaries admitted failure to implement the final cutpoints, but claimed sovereign immunity under the Eleventh Amendment. However, Ex parte Young allows suits against individual state officers for prospective relief to end ongoing violations of federal law. Although Ex parte Young is not available under Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), where Congress has created a detailed remedial scheme for enforcement of a statutorily created right against a state, the CAA does not contain a limited remedial scheme. The CAA includes a citizen suit provision that is integral to the CAA remedial scheme and that allows any person to bring a private enforcement action against state officials when within the limits of the Eleventh Amendment. Likewise, the commonwealth does not have a special sovereignty interest in the design and enforcement of its I/M program. The implementation of the final cutpoints required by the SIP does not amount to an expansive and permanent intrusion on sovereign interests. Further, implementation of the final cutpoints is federal law under the CAA and not a state-law requirement outside the scope of Ex parte Young. The CAA requires SIPs and they have the force and effect of federal law. Moreover, the group is seeking to enforce specific SIP requirements and not compliance with the CAA's NAAQS requirements, which are unenforceable emission standards. In addition, the failure rates of older cars in the I/M program is immaterial to implementing the final cutpoint. Therefore, the secretaries violated the CAA by not fully implementing the I/M program. As a remedy, the court will conduct an evidentiary hearing to determine a schedule for implementing the final cutpoint emission standards. Clean Air Council v. Mallory, No. 01-179 (E.D. Pa. Oct. 18, 2002) (DuBois, J.) (19 pp.).

CAA, NEW MOTOR VEHICLE TESTING, EMISSIONS TESTING:

The D.C. Circuit held that the EPA compliance assurance program rule, known as CAP 2000, for testing new vehicle emissions violates the CAA. In a rulemaking under CAA §206, EPA adopted the CAP 2000 rule, which sets out the methods and procedures for automobile manufacturers to develop their own emissions tests to be used on new vehicles subject to EPA approval. A manufacturer of motor vehicle fuels and lubricants filed a petition arguing that the CAP 2000 program violates the CAA because it provides for test procedures and methods to be determined in closed proceedings rather than in a notice-and-comment rulemaking. CAA §206(d) states that EPA "shall by regulation establish the methods and procedures for making tests" for new automobiles. CAP 2000 does not establish methods and procedures for making tests. Instead, it provides criteria for individual automobile manufacturers to develop their own testing, which EPA approves in a non-rulemaking process. Moreover, the CAP 2000 program is not a vaguely articulated test procedure that EPA is entitled deference to promulgate. Further, the EPA argument that the CAP 2000 program is necessary to address the burdensome nature of enacting annual CAA §206(d) rulemakings for automobile emissions does not overcome the congressional command in CAA §206(d) to establish the test methods by regulation. Similarly, the potential that confidential business information (CBI) from automobile emission testing may be revealed can be addressed through the CAA §208(c) CBI provision. In addition, the motor vehicle fuels manufacturer had standing to challenge the CAP 2000 rule. Ethyl Corp. v. Environmental Protection Agency, No. 99-1255 (D.C. Cir. Oct. 22, 2002) (7 pp.).

ANTIQUITIES ACT, NATIONAL MONUMENT DESIGNATIONS, ULTRA VIRES ACTIONS:

The D.C. Circuit affirmed a district court dismissal of a property rights group's complaint challenging six national monument designations by President William Clinton under the Antiquities Act. The group claimed that President Clinton acted unconstitutionally and ultra vires under the Property Clause of the U.S. Constitution. The government responded that the designation fell under the Antiquities Act and that Act's standard of review. The group claimed that fact-finding was necessary to determine that the President had acted within the authority of the Antiquities Act, but the district court dismissed the group's complaint. The group appealed. However, although review of presidential proclamations under the Antiquities Act are subject to ultra vires review to determine consistency with the U.S. Constitution and the statute itself, such review is not available here because the group failed to allege any facts sufficient to support an ultra vires claim. The group claimed that the six designations exceeded the President's authority under the Property Clause, but the Antiquities Act, and not the Property Clause authorized the designations. The group's argument that the Antiquities Act does not authorize the designation of land fails in light of U.S. Supreme Court precedent authorizing the designation of land as national monuments. To the extent that the group seeks ultra vires review under the Antiquities Act, it provides only bald assertions that the President acted outside the bounds of his constitutional and statutory authority. No factual allegations are presented and nothing in the record indicates any infirmity with the challenged designations. Moreover, the group's claim that the monument designations violate several other statutes that are the sole means of protecting resources, such as endangered species or wilderness, fails, because none of the referenced statutes are the sole means of protecting the referenced resources. Mountain States Legal Foundation v. Bush, No. 01-5421 (D.C. Cir. Oct. 18, 2002) (7 pp.).

ANTIQUITIES ACT, NATIONAL MONUMENT DESIGNATION, SEQUOIA NATIONAL MONUMENT:

The D.C. Circuit affirmed a district court dismissal of a county's complaint alleging that the designation of the Sequoia National Monument by President William Clinton violated the Antiquities Act, the U.S. Constitution, and several other laws. Contrary to the county's argument, the Antiquities Act does not require that a monument designation specify with a certain level of detail the objects of historic or scientific interest being addressed through the designation. The Antiquities Act authorizes designations for objects of historic or scientific interest and the designation of the Sequoia National Monument sufficiently identified historic sites and objects of scientific interest within the designated lands. Further, the designation of the sequoia ecosystem does not violate the language of the Act. The Antiquities Act also does not impose on the President an obligation to investigate whether a proposed designation is the smallest area compatible with the proper care and management of the objects proposed for protection. Moreover, the county failed to make factual allegations sufficient to support its claim that the President abused his discretion by designating more land than necessary to protect the historic and scientific objects of interest. Similarly, the county lacked sufficient factual allegations to support its claim that the designation of the Sequoia National Monument increases the risk of harm from fires to the area within the monument boundaries. Likewise, the county cannot allege violations of the Property Clause of the U.S. Constitution because the designation fell under the authority of the Antiquities Act and not the Property Clause. In addition, the designation of the monument did not violate the National Forest Management Act (NFMA) by unlawfully withdrawing land from the national forest system. The designation conceives of the designated land as having dual status as part of the national monument and as part of the Sequoia National Forest. Further, the county cannot allege that the management of the monument violates the NFMA or NEPA. Neither the NFMA nor NEPA provides a cause of action, so claims must be brought under the APA, but the APA does not authorize judicial review of presidential actions. Last, although a settlement agreement provided that timber harvesting in part of the designated land would be available, the settlement agreement did not create in any party the right to actual timber harvest. Thus, the designation of the monument is not subject to valid existing rights. Tulare County v. Bush, No. 01-5376 (D.C. Cir. Oct. 18, 2002) (6 pp.).

CONSERVATION RESERVE PROGRAM (CRP), ELIGIBILITY, "OWNER," "OPERATOR":

The Tenth Circuit affirmed the USDA Farm Service Agency's (FSA's) decision to deny a New Mexico farm's application for enrollment in the CRP. The farm was purchased by a husband and wife who formed a joint venture to run the farm and whose sons operated the farm for six months prior to the CRP application deadline. In its application, the farm listed the sons as the farm owners and the joint venture as the operator. The FSA denied the application because the joint venture did not meet the CRP eligibility requirements and the sons had not operated the farm for 12 months prior to the application deadline. The farm appealed. However, 7 C.F.R. §1410.5(a)(1) provides that an "owner" is a person or entity whom the FSA determines has sufficient legal ownership of the land. Similarly, an "operator" is a person who is in general control of the farming operation on the farm. An operator who wishes to participate in the CRP must have operated the eligible land for at least 12 months prior to submission of an offer. The FSA determined that no evidence existed that the husband and wife transferred ownership of the farm to the joint venture. Likewise, the sons did not operate the farm for more than 12 months prior to application. Sanders Land & Cattle Co. v. Department of Agriculture, No. 01-2305 (10th Cir. Oct. 9, 2002) (3 pp.).

TUCKER ACT, JURISDICTION, TAKINGS, BREACH OF CONTRACT:

The Federal Circuit affirmed a Court of Federal Claims decision that it lacked jurisdiction over an exotic bird breeder's takings and breach of contract claims against the government. In 1989, the breeder entered into a breeding loan agreement with an individual who subsequently became an informant for the FWS. The FWS eventually seized the breeder's birds, but offered to return all undiseased birds to the breeder after testing. The breeder, allegedly acting on the misconception that all of the birds were diseased, abandoned the birds to the government. When the breeder learned that most of the birds were not, in fact, diseased, he brought a takings claim and breach of contract claim against the government, with the breach of contract claim based on the assertion that the informant acted on behalf of the government when entering the breeder loan agreement. The Court of Federal Claims dismissed the claims for lack of jurisdiction and the breeder appealed. The Tucker Act limits the jurisdiction of the Court of Federal Claims to acts against the government based on the U.S. Constitution, Acts of Congress, contracts with the United States, or unliquidated tort damages. The breeder's breach of contract and takings claims arise from a criminal investigation and prosecution, and such criminal proceedings are sovereign matters over which the Court of Federal Claims has no jurisdiction. Moreover, the breach of contract claim fails because the breeder failed to show that the informant had authority to bind the government or how the government would be liable. Similarly, the takings claim fails because it is based on the government's allegedly fraudulent statement that the birds were sick and diseased. Such a claim sounds more in tort as a fraud claim, and the Court of Federal Claims lacks jurisdiction over such tort actions. Silva v. United States, No. 02-5080 (Fed. Cir. Oct. 9, 2002) (3 pp.).

INSURANCE, COMPREHENSIVE GENERAL LIABILITY (CGL) INSURANCE POLICIES, BEST EVIDENCE RULE:

A district court held that a manufacturer that lost its original insurance policies from 1963 to 1965 provided sufficient secondary evidence to prove that the terms of the policies required the insurer to defend and indemnify the manufacturer against bodily injury and property damage claims. The manufacturer was responsible for the remediation of 12 waste sites, and, in a separate action, was sued by 2,000 claimants alleging injury from the manufacturer's asbestos products. For claims arising from 1963 to 1965, the manufacturer sought defense and indemnification from its insurer. The insurer declined coverage, and the manufacturer sought separate declarations of rights, brought breach of contract claims, and sought summary judgment as to the existence and the terms of its policies with the insurer. The manufacturer and the insurer conceded that the original policies could not be found, and the manufacturer sufficiently showed diligent efforts to find the original policies. Thus, under the best evidence rule, the manufacturer could use secondary evidence to attempt to prove the existence and terms of the original policies. Contrary to the insurer's assertion, the best evidence rule does not provide for a jury trial on the manufacturer's efforts to prove the contents of the policies, and the manufacturer need only prove the contents of the policies by a preponderance of the evidence. The secondary evidence offered by the manufacturer supports that, at a minimum, the manufacturer's policies for 1963 to 1965 were written on the insurer's standard CGL policies for 1959 to 1965. Further, certificates of insurance that the insurer issued to third parties to prove coverage of the manufacturer indicated that the manufacturer's policies were written on standard CGL policy forms and included no pollution endorsement and that four of the policies included a standard occurrence endorsement. A memorandum from an employee of the manufacturer with insurance duties also supports the fact that the insurer provided the manufacturer with standard CGL coverage. Moreover, a premium ledger proved that the manufacturer paid for the policies in full, and documents of loss history detailed that under the policies the insurer defended the manufacturer against bodily injury and property damage claims. In addition, the manufacturer's insurance manager testified that the policies at issue were written on the insurer's standard CGL forms for 1959 to 1965 and that under the policies the insurer defended the insurer against bodily injury and property damage. Therefore, the manufacturer proved by the preponderance of the evidence the existence of the policies and the terms based on a standard CGL policy. As such, the court defined the terms of the policies according to the insurer's standard CGL policy terms. Coltec Industries, Inc. v. Zurich Insurance Co., No. 99 C 1087 (N.D. Ill. Sept. 30, 2002) (Lefkow, J.) (19 pp.).

CONSTITUTIONAL LAW, PRISON LITIGATION REFORM ACT:

A district court denied a state correctional department's motion for summary judgment regarding complaints by two inmates that while employed in a state prison they were exposed to toxic substances and subjected to hazardous working conditions that violated their Eighth and Fourteenth Amendment rights. The inmates alleged that during the course of their incarceration, while working at a nearby paint shop, they were exposed to dangerous substances, were not provided with adequate training on handling those substances, and were not provided appropriate safety equipment. As a result of these conditions, the inmates alleged that they suffered from sinus problems, bouts of dizziness, chest pains, various respiratory and cardiovascular disorders, and an increased risk of developing future respiratory and cardiac complications. The correctional department argued that the inmates had failed to exhaust their administrative remedies as required by the Prison Litigation Reform Act. However, reasonable questions of fact remain that prevent summary judgment. One inmate claimed that he did not file a grievance because two prison employees informed him the grievance was unnecessary due to the filing of a similar grievance by another inmate. Where a prisoner has made a reasonable attempt to file a grievance and prison officials have prevented the prisoner from filing the grievance, the grievance procedures are not available to the prison officials, and the Prison Litigation Reform Act does not prevent the inmate from suing in federal court. Here, the record indicates that a reasonable fact-finder could conclude that the inmate reasonably attempted to file and that prison officials prevented him from doing so. Similarly, the second inmate claimed that he had filed a grievance, had received a hearing from the review committee of the correctional department, and, thus, had exhausted his administrative remedies. The correctional department offered a declaration by the director of the inmate grievance program that after review of hearing records, the inmate had not filed a grievance. The director's declaration, however, is entirely conclusory and does not describe the records search, recordkeeping practices, or the places where records could be found. Moreover, there is no indication that records of adjudicating officials were checked. Before summary judgment can be issued on this inmate's claim, the correctional department must provide satisfactory information regarding the records search and recordkeeping practices. Thomas v. New York State Department of Correctional Services, No. 00 CIV. 7163(NRB) (S.D.N.Y. Sept. 30, 2002) (Buchwald, J.) (6 pp.).

HAZARDOUS SUBSTANCES, ARRANGER LIABILITY, ALASKA STATUTE §46.03.822(a)(4):

The Ninth Circuit certified to the Alaska Supreme Court the question of whether a manufacturer who sells a useful product that uses hazardous substances may be liable as an arranger of hazardous substance disposal under Alaska Statute §46.03.822(a)(4) if the product, when used as designed and installed by the manufacturer, releases hazardous substances to a city sewer system. The state sought from a dry-cleaning business remediation costs for the cleanup of percholoroethylene (PCE) emanating from sewer lines connected to the business. Under CERCLA and §46.03.822(a)(4), the business subsequently sought contribution from the successor in interest to the manufacturer that sold and installed the business' dry-cleaning equipment. According to the business, the manufacturer recommended that the business use PCE in the equipment and installed a PCE separator system that facilitated spillage and drainage of PCE to the city sewer. A district court dismissed the business' claims, but the business appealed the dismissal of the §46.03.822(a)(4) claim. The business argued that the plain language of §46.03.822(a)(4) allows for the suit against the manufacturer. Unlike CERCLA arranger liability, the §46.03.822(a)(4) liability provision imposes strict liability on any person who arranged for the disposal or treatment of hazardous substances "owned or possessed by the person, other than domestic sewage, or by any other party or entity." The business claimed that the language "or by any other party or entity" includes the manufacturer. The manufacturer contends that there can be no arranger liability under §46.03.822(a)(4) for an entity that merely manufactures or sells useful machinery. The answer to this question depends on the Alaska legislature's intended scope of arranger liability under §46.03.822(a)(4). The Alaska Supreme Court is the most appropriate body to undertake such an inquiry. Therefore, the case is stayed pending certification to the Alaska Supreme Court. Berg v. Popham, No. 01-35807 (9th Cir. Oct. 4, 2002) (8 pp.).

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

THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register (FR).

AIR:

  • EPA amended the NESHAPs for publicly owned treatment works. 67 FR 64741 (10/21/02).
  • EPA determined that the Wallula nonattainment area in Washington attained the NAAQS for particulate matter having an aerodynamic diameter of 10 micrometers or less. 67 FR 64815 (10/22/02).
  • EPA withdrew its final determination, published on August 23, 2002 (67 FR 54580), that the San Diego area attained the 1-hour ozone air quality standard by the deadline required by the CAA . 67 FR 65045 (10/23/02).
  • EPA determined that the San Diego area has attained the 1-hour ozone NAAQS by the deadline required by the CAA. 67 FR 65043 (10/23/02).

DRINKING WATER:

  • EPA revised the wastewater and drinking water regulations to include updated versions of test procedures (i.e., analytical methods) for the determination of chemical, radiological, and microbiological pollutants and contaminants in wastewater and drinking water. 67 FR 65219 (10/23/02).
  • EPA intends to approve a revision to Tennessee's public water system supervision program. 67 FR 64640 (10/21/02).

HAZARDOUS & SOLID WASTES:

  • EPA entered into a proposed prospective purchaser agreement under CERCLA in connection with the Midwest Portland Cement Superfund site in East Fultonham, Ohio. 67 FR 65353 (10/24/02).
  • The Agency for Toxic Substances and Disease Registry (ATSDR) announced the availability of seven updated final toxicological profiles of priority hazardous substances comprising the 14th set prepared by ATSDR. 67 FR 65356 (10/24/02).
  • ATSDR announced the availability of the 16th set of priority hazardous substance toxicological profiles, which consists of two new drafts and three updated drafts, for review and comment. 67 FR 65357 (10/24/02).
  • EPA proposed to approve revisions to Ohio's hazardous waste program under RCRA. 67 FR 64594 (10/21/02).

INFORMATION QUALITY GUIDELINES:

  • CEQ announced the availability of final information quality guidelines it prepared in response to an Office of Management and Budget notice directing all federal agencies to issue and implement guidelines to ensure and maximize the quality, objectivity, utility, and integrity of government information disseminated to the public. 67 FR 65354 (10/24/02).

LAND CONSERVATION:

  • NOAA announced the availability of Draft Guidance for the Coastal and Estuarine Land Conservation Program. 67 FR 64874 (10/22/02).

RADIOACTIVE WASTE:

  • NRC signed a memorandum of understanding with EPA on the radiological decommissioning and decontamination of NRC-licensed sites. 67 FR 65375 (10/24/02).

RISK ASSESSMENT:

  • EPA announced the availability of its tolerance reassessment decision and related documents for hexazinone including the Hexazinone Overview, Hexazinone Summary, Hexazinone Decision Document, and supporting risk assessment documents. 67 FR 65118 (10/23/02).
  • EPA announced the availability of the report on the Food Quality Protection Act tolerance reassessment progress and risk management decision for metolachlor for public comment. 67 FR 65120 (10/23/02).

TOXIC SUBSTANCES:

  • EPA announced an upcoming change in location and contractor designated to manage the toxics release inventory (TRI) data processing for all TRI submissions including TRI trade secret and confidential information submitted pursuant to 40 CFR part 350. 67 FR 65566 (10/25/02).

WATER QUALITY:

  • EPA proposed to establish a designated use for a segment of Five Mile Creek in Alabama. 67 FR 65255 (10/23/02).
  • NOAA announced that Barnes Nursery, Inc., filed a notice of appeal asking the Department of Commerce to override the Ohio Department of Natural Resources' objection to the nursery's after-the-fact permit to maintain an excavated channel and berm system intended to store water for agricultural purposes. 67 FR 65091 (10/23/02).
  • EPA provided notice of and seeks comment on proposed modifications to the two general NPDES permits for Alaskan log transfer facilities that were issued on March 7, 2000. 67 FR 64885 (10/22/02).

DOJ NOTICES OF SETTLEMENTS:

  • United States v. Agri Energy, LLC, No. CV02-3787 MJD/JGL (D. Minn. Oct. 2, 2002). Settling CAA defendants that own and operate an ethanol dry mill in Luverne, Minnesota, must install air pollution control technology, must comply with new, more stringent emission limits, and must pay a civil penalty of $31,598. 67 FR 65361 (10/24/02).
  • United States v. Al-Corn Clean Fuel Cooperative, No. CV02-3792 DWF/SRN (D. Minn. Oct. 2, 2002). A settling CAA defendant that owns and operates an ethanol dry mill in Claremont, Minnesota, must install air pollution control technology, must comply with new, more stringent emission limits, and must pay a civil penalty of $36,800. 67 FR 65362 (10/24/02).
  • United States v. American Standard, Inc., No. 3:01CV0513RM (N.D. Ind. Sept. 30, 2002). A settling CERCLA defendant must pay $153,585 in U.S. response costs incurred at the Four County Landfill Site in Fulton County, Indiana; a second settling CERCLA defendant that has filed for bankruptcy must allow the United States a general unsecured claim of $63,389 in U.S. response costs incurred at the site. 67 FR 65362 (10/24/02).
  • United States v. Central MN Ethanol Co-op, No. CV02-3786 PAM/RLE (D. Minn. Oct. 2, 2002). A settling CAA defendant that owns and operates an ethanol dry mill in Little Falls, Minnesota, must install air pollution control technology, must comply with new, more stringent emission limits, and must pay a civil penalty of $29,656. 67 FR 65363 (10/24/02).
  • United States v. Chippewa Valley Ethanol Co., No. CV02-3794 DSD/SRN (D. Minn. Oct. 2, 2002). Settling CAA defendants that own and operate an ethanol dry mill in Benson, Minnesota, must install air pollution control technology, must comply with new, more stringent emission limits, and must pay a civil penalty of $38,624. 67 FR 65363 (10/24/02).
  • United States v. Corn Plus, No. CV02-3785 RHK/AJB (D. Minn. Oct. 2, 2002). A settling CAA defendant that owns and operates an ethanol dry mill in Winnebago, Minnesota, must install air pollution control technology, must comply with new, more stringent emission limits, and must pay a civil penalty of $42,076. 67 FR 65363 (10/24/02).
  • United States v. Diversified Energy Co., No. CV02-3784 ADM/RLE (D. Minn. Oct. 2, 2002). A settling CAA defendant that owns and operates an ethanol dry mill in Morris, Minnesota, must install air pollution control technology, must comply with new, more stringent emission limits, and must pay a civil penalty of $34,975. 67 FR 65364 (10/24/02).
  • United States v. Ethanol 2000, LLP, No. CV02-3788 MJD/JGL (D. Minn. Oct. 2, 2002). Settling CAA defendants that own and operate an ethanol dry mill in Luverne, Minnesota, must install air pollution control technology, must comply with new, more stringent emission limits, and must pay a civil penalty of $36,101. 67 FR 65364 (10/24/02).
  • United States v. Agra Resources Cooperative, No. CV02-3789 MJD/JGL (D. Minn. Oct. 2, 2002). Settling CAA defendants that own and operate an ethanol dry mill in Albert Lea, Minnesota, must install air pollution control technology, must comply with new, more stringent emission limits, and must pay a civil penalty of $30,409. 67 FR 65365 (10/24/02).
  • United States v. Gopher State Ethanol, Inc., No. CV02-3793 DSD/SRN (D. Minn. Oct. 2, 2002). A settling CAA defendant that owns and operates an ethanol dry mill in St. Paul, Minnesota, must install air pollution control technology, must comply with new, more stringent emission limits, and must pay a civil penalty of $18,904. 67 FR 65365 (10/24/02).
  • United States v. Heartland Corn Products, No. CV02-3790 RHK/AJB (D. Minn. Oct. 2, 2002). A settling CAA defendant that owns and operates an ethanol dry mill in Wintrop, Minnesota, must install air pollution control technology, must comply with new, more stringent emission limits, and must pay a civil penalty of $39,969. 67 FR 65365 (10/24/02).
  • United States v. Minnesota Energy, No. CV02-3791 JEL/JGL (D. Minn. Oct. 2, 2002). A settling CAA defendant that owns and operates an ethanol dry mill in Buffalo Lake, Minnesota, must install air pollution control technology, must comply with new, more stringent emission limits, and must pay a civil penalty of $29,360. 67 FR 65366 (10/24/02).
  • United States v. Pro-Corn, LLC, No. (D. Minn. Oct. 2, 2002). Settling CAA defendants that own and operate an ethanol dry mill in Preston, Minnesota, must install air pollution control technology, must comply with new, more stringent emission limits, and must pay a civil penalty of $32,828. 67 FR 65366 (10/24/02).
  • United States v. National Cooperative Refinery Ass'n., No. 02-1363WEB (D. Kan. Oct. 11, 2002). Settling CAA, CERCLA, CWA, and EPCRA defendants must perform injunctive relief, must clean and remove from service two oil pipelines, and must pay $950,000 in civil penalties. 67 FR 65597 (10/25/02).

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

THE CONGRESS

CHAMBER ACTION

  • H.R. 1070 (Great Lakes; CWA), which would amend the CWA to authorize the Administrator of EPA to provide assistance for remediation of sediment contamination in areas of concern, would authorize assistance for research and development of innovative technologies for such remediation, and would amend the CWA and the Water Resources Development Act of 2000 to modify provisions relating to the Lake Champlain basin, was passed by the Senate. 148 Cong. Rec. S10739 (daily ed. Oct. 17, 2002).
  • H.R. 5200 (Clark County, Nevada), which would establish wilderness areas, promote conservation, improve public land, and provide for high quality development in Clark County, Nevada, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S10769 (daily ed. Oct. 17, 2002).

COMMITTEE ACTION

  • S . 606 (EPA) was reported by the Senate Committee on Environment and Public Works. S. Rep. No. 107-320, 148 Cong. Rec. S10674 (daily ed. Oct. 17, 2002). The bill would provide additional authority to the Office of Ombudsman of EPA.
  • S. 2018 (Cibola National Forest) was reported by the Senate Committee on Indian Affairs. S. Rep. No. 107-321, 148 Cong. Rec. S10674 (daily ed. Oct. 17, 2002). The bill would establish the T'uf Shur Bien Preservation Trust Area within the Cibola National Forest in New Mexico to resolve a land claim involving the Sandia Mountain Wilderness.
  • H.R. 4912 (public lands; wild fires) was reported by the House Committee on Resources. H. Rep. No. 107-763, 148 Cong. Rec. H8034 (daily ed. Oct. 21, 2002). The bill would increase the penalties to be imposed for a violation of fire regulations applicable to the public lands, National Park System lands, or National Forest System lands when the violation results in damage to public or private property and would specify the purpose for which collected fines may be used.

BILLS INTRODUCED

  • S . 3127 (Reed, D-R.I.) (SDWA) would amend the SDWA to provide assistance to states to support testing of private wells in areas of suspected contamination to limit or prevent human exposure to contaminated groundwater. 148 Cong. Rec. S10676 (daily ed. Oct. 17, 2002). The bill was referred to the Committee on Environment and Public Works.
  • S. 3129 (Crapo, R-Idaho) (federal lands; wild fires) would permit the Secretary of the Interior to enter certain leases for fire capitalization improvements. 148 Cong. Rec. S10676 (daily ed. Oct. 17, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3135 (Carper, D-Del.) (CAA) would amend the CAA to establish a national uniform multiple air pollutant regulatory program for the electric generating sector. 148 Cong. Rec. S10676 (daily ed. Oct. 17, 2002). The bill was referred to the Committee on Environment and Public Works.
  • H.R. 5694 (Berkley, D-Nev.) (hydroelectric power) would allow for the augmentation of electric power production at hydroelectric facilities located on certain federal lands by making other federal lands available for renewable energy production. 148 Cong. Rec. H8028 (daily ed. Oct. 17, 2002). The bill was referred to the Committees on Resources, and Energy and Commerce, and Transportation and Infrastructure.

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

INTERNATIONAL

GENERAL:

  • The Global Environmental Facility held a council meeting in Beijing. Attendees added persistent organic pollutants and land degradation to a list of focus issues that also includes climate change, biological diversity, international waters and ozone depletion. The assembly meets every four years.
  • Two studies published in The Lancet detail the effects of air pollution in India and China resulting from the burning of coal. See http://www.thelancet.com/
  • The Aarhus Convention--parties to the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters--held a meeting in Lucca, Italy. Twenty-two countries have ratified the Convention. See http://www.unece.org/press/pr2002/02env10e.htm

CLIMATE CHANGE:

  • Parties to the U.N. Framework Convention on Climate Change opened their eighth meeting, convening in New Delhi. Senior U.S. climate negotiator Harlan Watson said "we'll be following protocol issues. We're certainly not going to interfere, but we will be watching very carefully, obviously to protect our national interests."
  • International Energy Agency Executive Director Robert Priddle said countries have fallen behind on Kyoto Protocol implementation. The Agency estimates that world carbon dioxide emissions related to energy were up 13% in 2000 from 1990 levels and that 2010 emissions could be 29% higher than Kyoto targets.
  • Forest Trends and a Future Harvest center in Indonesia issued a report calling for increased utilization of community forestry projects to meet Kyoto targets. See http://www.futureharvest.org/pdf/REPORTOP-037.pdf
  • India's Ministry of Environment and Forests approved six renewable energy projects to be set up with the assistance of The Netherlands pursuant to the Kyoto clean development mechanism. See http://www.indiaexpress.com/news/national/20021019-0.html
  • A report issued in Australia and funded by energy companies said that the country's competitive position would not be adversely affected by Kyoto ratification. See http://www.smh.com.au/articles/2002/10/21/1034561392967.html
  • A study published in Science magazine said that glaciers on Kilimanjaro are quickly melting and will disappear by 2020. "It's difficult to ascribe the decrease solely to humans," said Douglas Hardy of the University of Massachusetts, one of the authors. "Further research is needed to determine to what extent global warming and/or natural climate variability are responsible for the demise of Kilimanjaro's glaciers." See http://www.sciencemag.org/

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

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