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Weekly Update Volume 32, Issue 32

11/18/2002

LITIGATION

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

CWA, NOTICE, CIVIL PENALTIES, MOOTNESS:

The Ninth Circuit held that an environmental group that failed to notify a company of the specific dates of alleged CWA violations may still pursue claims for those violations, and that the group can pursue civil penalties against the company even though it no longer owns the polluting facility at issue. The case arose after an environmental group filed a CWA action against a company that owned a petroleum coke facility. The lower court limited the group's claim to violations for which the dates were specified in the environmental group's notice letter, and it ultimately dismissed the case on mootness grounds because the company subsequently sold the facility. The environmental group appealed, and the Ninth Circuit reversed the lower court rulings. As long as a notice letter is reasonably specific as to the nature and time of the alleged violations, the plaintiff has fulfilled the notice requirement. The letter does not need to describe every detail of every violation; it need only provide enough information that the defendant can identify and correct the problem. Here, the group's allegation of CWA violations on each day of ship loading--even on days for which the group did not provide specific dates--was sufficiently specific to fulfill its notice obligation. In addition, the group can pursue civil penalties against the company even though the company no longer owns and operates the source of pollution. Because of the important deterrent function of civil penalties under the CWA, a defendant cannot escape liability arising out of past violations by selling a polluting facility that continues to operate. Were the court to find this case against the company moot, not only would the company be able to escape the consequences of its pollution, but any subsequent owner could continue the illegal pollution, confident in its ability to escape any potential monetary sanctions by re-selling the facility in its turn. A finding of mootness, therefore, could allow repeated violations that would evade review, and would substantially weaken the ability of citizen suits and civil penalties to police and deter the conduct forbidden under the Act. San Francisco Baykeeper, Inc. v. Tosco Corp., No. 01-15939 (9th Cir. Nov. 1, 2002) (13 pp.).

CWA, NEPA, NATIONAL FORESTS, INSECTICIDE SPRAYING:

The Ninth Circuit reversed a district court decision that the U.S. Forest Service complied with NEPA's EIS requirements and the CWA's NPDES permit requirements in connection with its aerial insecticide spraying program aimed at controlling Douglas Fir Tussock moths in national forest lands in Oregon and Washington state. Contrary to the district court's finding, the aerial spraying at issue here is a point source and the Forest Service must obtain an NPDES permit before it resumes spraying. The Forest Service conceded that all the elements of the definition of point source pollution are met. Rather, it argued that aerial spraying is a silvicultural pest control activity, and that an EPA regulation excludes pollution arising from silvicultural pest control activities from NPDES permit requirements by defining such pollution as nonpoint source. The Forest Service, however, improperly read the regulation as a blanket exclusion for all silvicultural pest control activities. The regulation excludes only those silvicultural pest control activities from which there is natural runoff, rather than all silvicultural pest control activities. Thus, the regulation excludes nonpoint source silvicultural activities from NPDES permit requirements, whereas the spraying involved here is not a nonpoint source activity at all. The Forest Service also relied on two EPA letters and a brief passage in an EPA guidance document that indicate that no NPDES permit is required for the aerial spraying project. The two letters have very little power to persuade. They provide no analysis and do not even mention the regulation that the Forest Service relies on. Further, the guidance document is not a guidance document for silvicultural activities. Even if the court were to accept the Forest Service’s reading of the two letters and guidance document as definitive pronouncements of EPA's view on this issue, the court would reject the Forest Service’s argument that EPA has the authority to refine the definitions of point source and nonpoint source pollution in a way that contravenes the clear intent of Congress as expressed in the CWA. In addition, the Forest Service's EIS for the program did not adequately analyze the issue of pesticide drift. The Forest Service’s documentation does not amount to a reasonably complete discussion of possible mitigation measures and is at best a mere listing of mitigation measures without supporting analytical data. League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Forsgren, No. 01-35729 (9th Cir. Nov. 4, 2002) (23 pp.).

RCRA, USTs, INVESTIGATION COSTS:

The Seventh Circuit reversed the dismissal of a landowner's RCRA claim against a neighboring gas station for petroleum contamination resulting from a UST spill. After learning that it released petroleum from its UST, the gas station reported the spill to the neighboring landowner and requested access to the property to investigate whether petroleum seeped into that land as well. The landowner stated that it would only allow access if the gas station would agree to clean up any contamination it discovered. The gas station refused to enter into the agreement, and the landowner conducted its own investigation, discovering contamination on the property. The landowner then filed RCRA and state-law claims against the gas station in federal court, but the district court dismissed the complaint. The district court held that the gas station had no duty under federal law to remediate pollution on the landowner's property prior to investigation, and that the gas station was prevented from investigating by the landowner itself. The district court erred in dismissing the landowner's RCRA claim. The landowner alleged every prima facie element of a RCRA case, and the agreement it sought cannot be construed as an attempt to impede enforcement of the environmental laws for its own financial advantage. The fact that under some factual circumstances RCRA might not require the complete elimination of the pollution from the landowner’s property does not preclude the possibility that state law might impose exactly this type of duty. Further, EPA regulations do not prohibit citizen suits to clean up petroleum contamination from leaking tanks. Assuming that an investigation, whether undertaken by EPA, the gas station, or the landowner, has yielded evidence of imminent and substantial contamination, the plain language of RCRA makes a remedy available to the landowner. Further, because the landowner may go forward with its RCRA claim, its state-law claims must be reinstated as well since they are related to the same set of operative facts. The district court, however, properly dismissed the landowner's RCRA claim for reimbursement of the preliminary investigation expenses it has already incurred. In Meghrig v. KFC Western, Inc., 516 U.S. 479, 26 ELR 20820 (1996), the U.S. Supreme Court held that “a private party cannot recover the cost of a past cleanup effort under RCRA” whether the remedy is sought as “damages” or “equitable restitution,” and investigation costs are a mere subset of cleanup costs. Albany Bank & Trust Co. v. Exxon Mobil Corp., No. 01-4211 (7th Cir. Nov. 8, 2002) (11 pp.).

CERCLA, ENVIRONMENTAL JUSTICE, CLEANUP, SUBJECT MATTER JURISDICTION:

The Eleventh Circuit held that CERCLA §113(h) bars community groups' constitutional and statutory claims that a cleanup plan for the Wingate Superfund site in Ft. Lauderdale, Florida, was inadequate and perpetuated de jure segregation. CERCLA §113(h) bars federal judicial review of cleanups that are not yet complete. Here, it is undisputed that the cleanup is not finished. Further, because the complaint seeks to have the court modify or replace the remedial plan for the site, it clearly is a challenge to the selected remedial plan. The groups' request for relocation also constitutes a challenge to the cleanup. The court, therefore, lacks subject matter jurisdiction under CERCLA §113(h). In addition, CERCLA §113(h) bars constitutional challenges to a remedial plan. The language of CERCLA §113(h) does not distinguish between constitutional and statutory challenges; instead, it delays judicial review of "any" challenges to unfinished remedial action. The use of the word "any" compels the conclusion that Congress meant to bar jurisdiction over constitutional as well as statutory claims challenging the adequacy of a remedial plan. The district court, therefore, properly dismissed the groups' claims. Broward Gardens Tenants Ass'n v. United States Environmental Protection Agency, No. 01-15117 (11th Cir. Nov. 5, 2002) (11 pp.).

OIL POLLUTION ACT (OPA), CONSTITUTIONAL LAW, EXXON VALDEZ:

The Ninth Circuit held that OPA §2737, which effectively bars the Exxon Valdez from operating in Prince William Sound, is not an unconstitutional bill of attainder and does not violate the Due Process Clause of the Fifth Amendment. OPA §2737 excludes from the waters of Prince William Sound any vessel that spilled more than one million gallons of oil into the marine environment after March 22, 1989. The owners and operator of the Exxon Valdez filed suit against the government, arguing that §2737 is unconstitutional. The owners and operator were correct in arguing that §2737 singles out the Exxon Valdez within the meaning of the Bill of Attainder Clause. However, it does not inflict punishment on the owners and operator. Section 2737 does not utilize conventional legislative punishment, it rationally serves a nonpunitive purpose, and the legislative record of its passage does not support a punitive purpose on the part of Congress. OPA §2737, therefore, is not an unconstitutional bill of attainder. In addition, §2737 does not violate the Due Process Clause of the Fifth Amendment. Its allegedly retroactive application furthers a rational legislative purpose. Nor is §2737 inconsistent with the Fifth Amendment’s guarantee of equal protection because there is a rational basis for Congress to have concluded that excluding the Exxon Valdez from the Prince William Sound would further the legitimate purpose of protecting the Sound’s environment from future oil spills. The lower court's ruling in favor of the government, therefore, was proper. SeaRiver Maritime Financial Holdings, Inc. v. Mineta, No. 01-35762 (9th Cir. Oct. 31, 2002) (26 pp.).

FOIA, PRIVATE PROPERTY, ENDANGERED SPECIES:

The D.C. Circuit held that the FWS must disclose site-specific information about the location of nesting sites of the cactus ferruginous pygmy owl in Arizona even though disclosure might lead to the identification of private property. The FWS provided a home builders association with numerous documents on the location of the pygmy owl, but redacted the documents to conceal most of the site-specific location that the association sought. Under exemption 6, a federal agency may withhold personal, medical, and similar files if their disclosure would constitute a clearly unwarranted invasion of personal privacy. Here, disclosure of sight-specific information about the pygmy owls constitutes a cognizable public interest under FOIA because it could contribute to the public understanding of the operations or activities of the government, and the public interest in disclosure outweighs the privacy interests reflected in the FWS' evidence. The FWS failed to show that unlawful trespass is likely to occur as a result of disclosure. Further, the property owners have already divulged information about the sightings to the state agency with the understanding that the information, although confidential, might be subject to release under disclosure laws. Exemption 6, therefore, does not apply. And because the requested information does not fall under exemptions 3, 4, or 5, the court ordered the FWS to disclose the requested information. National Ass'n of Home Builders v. Norton, No. 01-5283 (DC Cir. Nov. 5, 2002) (12 pp.).

ESA, LISTING DETERMINATIONS, DEADLINES:

The Ninth Circuit reversed a district court decision and held that the FWS does not have discretion under ESA §4 to make an initial determination to list a petitioned species beyond the ESA's 12-month deadline for making final determinations. The case arose after environmental groups filed petitions to list certain plant and animal species as endangered or threatened. The FWS failed to make an initial determination to list the petitioned species within the ESA's 12-month deadline, and the groups filed suit. FWS argued that the case was moot because it has since completed the action requested by the environmental groups who filed suit against it. The alleged wrongful delay by the FWS, however, is capable of repetition, yet evading review. Similarly, the environmental groups established standing. On the merits, the district court erred in holding that the FWS has discretion on when to issue an initial determination for petitioned species. Under ESA §4(b)(3)(A), to the maximum extent practicable, the FWS has 90 days after a petition to list a species is filed within which to make an initial determination. ESA §4(b)(3)(B) provides that if the initial determination is positive, the FWS has one year from the date the petition was received to make a final determination. According to the FWS' interpretation of the statute, it has 90 days to the maximum extent practicable to make the initial listing determination under §4(b)(3)(A), but if it is not practicable to complete the determination within 90 days, the finding may be delayed indefinitely. However, this interpretation would render §4(b)(3)(B) inoperable. The only way to give effect to both deadline provisions is to apply the 12-month deadline to both initial and final determinations. The district court, however, did not err in holding that it lacked discretion to grant injunctive relief that would have given the FWS more time to make a final determination. The ESA forecloses discretion when an agency misses ESA-imposed deadlines. Biodiversity Legal Foundation v. Badgley, Nos. 00-35076, -35089 (9th Cir. Nov. 4, 2002) (24 pp.).

NATIVE AMERICANS, FOREST LAND, TAX LAW:

The Ninth Circuit reversed a district court decision holding that a Washington county tax imposed against a Native American tribe after it transferred forest land to the United States to hold in trust for the tribe was a permissible taxation of land under the Indian General Allotment Act of 1887. Under Washington state’s tax law, land classified for forest use is assigned a reduced property valuation for property tax purposes. Under certain circumstances, the sale or transfer of forest use land deprives the property of its favorable tax status and triggers the imposition of a tax on the seller-transferor. Believing that the county lacked federal congressional authority to levy the tax, the tribe sought declaratory and injunctive relief from the tax in district court. The county argued that the tax fell within the scope of permissible state taxation of a Native American tribe. The district court agreed and granted summary judgment in favor of the county. Congress’s intention to permit state taxation of Native American land, however, does not unambiguously encompass the unique taxation scheme in this case. Further, the essence of this tax is that it is triggered by a specific event--a property transfer. Thus, it resembles the excise tax rejected by the U.S. Supreme Court in County of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251 (1992). Moreover, the method of calculation and collection does not transform the tax into a permissible one. The tax, therefore, does not fall within the limited scope of permissible taxation allowed under the General Allotment Act and County of Yakima. Quinault Indian Nation v. Grays Harbor County, No. 01-35219 (9th Cir. Nov. 8, 2002) (15 pp.).

DUE PROCESS, RIPENESS, INJUNCTIVE RELIEF:

The Tenth Circuit affirmed a district court decision dismissing a developer's state and substantive due process claims against a city on ripeness grounds and denying the developer's request for injunctive relief. After the developer purchased the development at issue, a controversy ensued over whether the city or the developer was responsible for improving or enlarging the sewer system for a part of the development that had been completed in previous years. The city ultimately issued a building moratorium, but then lifted it without informing the developer. The developer then filed suit in federal court alleging that the city had violated its constitutional property rights by preventing it from developing its land. The district judge granted declaratory relief in favor of the developer, holding that the city was responsible for any needed improvements to the existing sewer system, but it denied the developer's request for injunctive relief and dismissed its state and substantive due process claims. The developer then appealed. The district court did not err in concluding that the developer's substantive due process claim was not ripe. The developer argued that its claim was not a takings claim but rather an excessive regulation due process claim. Nevertheless, the ripeness test for just compensation claims also applies to substantive due process claims. Here, there was no final decision by the city. The claim, therefore, is not ripe. Nor did the district judge err when she refused to issue a mandatory injunction requiring the city to maintain and upgrade the sewer system for the older portion of the development. It is well established that injunctive relief is equitable and that the district court's decision to grant or deny an injunction is reviewed for abuse of discretion. Here, there is no abuse of discretion. Lastly, the district court did not err in disposing of the developer's state-law claims for damages. The developer provides no authority to support its contention that Oklahoma law provides a damages remedy on the facts presented, and the court is satisfied that the ripeness requirement is the same for the state-law claims as it is for the federal claims. Signature Properties International Limited Partnership v. City of Edmond, No. 00-6403 (10th Cir. Nov. 8, 2002) (10 pp.).

SOLID WASTE, PERMIT, CRIMINAL HISTORY:

New York's highest court held that the state environmental agency properly denied a company's application for a permit to expand its municipal solid waste disposal facility. During the pendency of the application, the company was fined for federal tax-related crimes spanning several years, and its three principals were sentenced to prison and ordered to pay substantial fines and restitution. The state environmental agency subsequently denied the company’s application, finding that it was unfit given the criminal history of the company and its principals, and that the company’s unfitness outweighed any need for landfill expansion. The agency’s determination was rational, based on substantial evidence, and not discriminatory. The admitted criminal histories of the company and its principals--involving deceit in the operation of their business over several years--provides ample basis for denying the expansion permit. There is also no valid basis for the company's argument that, compared to other entities, it has been the victim of improper discrimination. Nor did the permit denial violate Correction Law §752. Although the company's criminal activities did not generally involve the violation of environmental laws, the elements inherent in the criminal conduct for which the company and its principals were convicted have a direct relationship to the duties and responsibilities inherent in the license sought, including accurate recordkeeping, effective self-policing, and honest self-reporting to government. Al Turi Landfill, Inc. v. New York State Department of Environmental Conservation, No. 129 (N.Y. Oct. 24, 2002) (5 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 benzene waste operations. 67 FR 68526 (11/12/02).
  • EPA adopted emission standards for large spark-ignition engines such as those used in forklifts and airport ground-service equipment; recreational vehicles using spark-ignition engines such as off-highway motorcycles, all-terrain vehicles, and snowmobiles; and recreational marine diesel engines. 67 FR 68241 (11/8/02).
  • EPA removed five area source categories of hazardous air pollutants--asphalt hot-mix production, fabricated metal products, paint and allied products, paper coated and laminated, and packaging and transportation equipment manufacturing--from the source category list for standards under CAA §112(c)(6), and removed an additional area source category--open burning of scrap tires--from the anthropogenic stationary source categories included in the inventory analysis for §112(c)(6) and 112(k). 67 FR 68124 (11/8/02).
  • EPA proposed to allocate essential-use allowances for import and production of class I stratospheric ozone depleting substances for use in medical devices and Space Shuttle and Titan Rockets for calendar year 2003. 67 FR 67581 (11/6/02).
  • EPA entered into a proposed settlement agreement in Utility Air Regulatory Group v. EPA, No. 02-1023 (D.C. Cir.), under CAA §113(g). 67 FR 68863 (11/13/02).
  • EPA determined 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 67113 (11/4/02).
  • EPA approved Mississippi's CAA §111(d) negative declaration certifying that small municipal waste combustion units subject to the requirements of CAA §§111(d) and 129 do not exist in the state. 67 FR 67316 (11/5/02).
  • EPA redesignated the Allegheny County, Pennsylvania, carbon monoxide (CO) nonattainment area to attainment for the CO NAAQS. 67 FR 68521 (11/12/02).
  • EPA redesignated the current single unclassifiable area for particulate matter having an aerodynamic diameter of 10 micrometers or less in Arizona into numerous individual areas to be consistent with the area definitions for other pollutants, and approved the subdivision of one of those individual areas, referred to as hydrographic area 61, into two areas. 67 FR 68769 (11/13/02).
  • EPA proposed to issue a finding that the metropolitan Washington, D.C., serious ozone nonattainment area failed to attain the one-hour ozone NAAQS by the CAA's November 15, 1999, deadline. 67 FR 68805 (11/13/02).

ENERGY:

  • EPA announced the availability of reports summarizing compliance with alternative fueled vehicle acquisition requirements of the Energy Policy Act of 1992, which was designed to increase U.S. energy security in cost-effective and environmentally beneficial ways, in part through increased use of alternative fuels by vehicles owned and operated by the federal government. 67 FR 69220 (11/15/02).

FOIA:

  • EPA revised subpart A of its FOIA implementing regulations. 67 FR 67303 (11/5/02).

HAZARDOUS & SOLID WASTES:

  • EPA proposed to execute a proposed prospective purchaser agreement under CERCLA concerning property at the Pruitt & Grace Superfund site. 67 FR 69220 (11/15/02).
  • EPA entered into a proposed administrative settlement under CERCLA §122(i) in connection with the Nazcon Concrete Superfund site in Beltsville, Maryland. 67 FR 68868 (11/13/02).
  • EPA entered into a proposed de minimis administrative order on consent under CERCLA in connection with the Interstate Lead Company Superfund site in Leeds, Alabama. 67 FR 67616 (11/6/02).
  • EPA rescinded its October 1, 2002, Federal Register notice regarding the settlement of response costs incurred by the Agency at the Koppers Charleston Superfund site in Charleston, South Carolina, because the notice was published prematurely. 67 FR 67619 (11/6/02).

INFORMATION QUALITY:

  • OSM 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 68882 (11/13/02).

OIL POLLUTION:

  • The U.S. Coast Guard announced the availability of the risk assessment it conducted to help set its environmental agenda for oil spill prevention, preparedness, and response in the 21st century. 67 FR 67234 (11/4/02).

PESTICIDES:

  • EPA announced the availability of draft guidance on how to comply with the Agency's data citation requirements for registration of new pesticide products under FIFRA. 67 FR 68866 (11/13/02).

SMCRA PROGRAM APPROVALS:

  • OSM approved an amendment to Iowa's regulatory program under SMCRA. 67 FR 67522 (11/6/02).
  • OSM approved, with certain conditions, an amendment to Kentucky's permanent regulatory program under SMCRA. 67 FR 67524 (11/6/02).
  • OSM approved an amendment to Louisiana's regulatory program under SMCRA. 67 FR 69123 (11/15/02).
  • OSM approved an amendment to Pennsylvania's regulatory program under SMCRA. 67 FR 67528 (11/6/02).
  • OSM approved an amendment to Texas' regulatory program under SMCRA. 67 FR 67531 (11/6/02).
  • OSM approved an amendment to Utah's regulatory program under SMCRA. 67 FR 67534 (11/6/02).
  • OSM approved an amendment to Wyoming's regulatory program under SMCRA. 67 FR 67540 (11/6/02).

TRANSPORTATION:

  • DOT's Research and Special Programs Administration proposed to change some of the safety standards for gas pipelines in order to improve the clarity and effectiveness of the present standards. 67 FR 68815 (11/13/02).

WATER QUALITY:

  • EPA proposed water quality standards that establish an antidegredation policy and implementation methods for high quality waters in Kentucky. 67 FR 68971 (11/14/02).
  • EPA withdrew the federal human health and aquatic life water quality criteria for toxic pollutants applicable to Michigan because the federally promulgated criteria are no longer needed. 67 FR 68039 (11/8/02).

WILDLIFE:

  • FWS proposed regulations that would authorize for the next five years the incidental, unintentional take of small numbers of Florida manatees resulting from government activities related to watercraft and watercraft access facilities within the Florida region. 67 FR 69077 (11/14/02).
  • FWS established 13 additional manatee protection areas in Florida. 67 FR 68449 (11/8/02).
  • FWS is seeking input and requesting comments on additional measures to protect the endangered West Indian manatee in Florida and for further recovery of the species. 67 FR 68490 (11/8/02).
  • The National Marine Fisheries Service (NMFS) announced that on August 30, 2002, it issued an incidental take permit to the North Carolina Division of Marine Fisheries for the incidental take of ESA-listed adult and juvenile sea turtles associated with otherwise lawful commercial fall gill net fisheries for flounder operating in Pimlico Sound, North Carolina. 67 FR 67150 (11/4/02).
  • NMFS is temporarily allowing for 30 days the use of limited tow times by shrimp trawlers as an alternative to the use of turtle excluder devices (TEDs) in certain waters off Louisiana and Alabama in order to relieve the economic hardship on shrimpers while ensuring adequate protection of threatened and endangered sea turtles. 67 FR 67793 (11/7/02).

  • NMFS is temporarily allowing for 30 days the use of limited tow times by shrimp trawlers as an alternative to the use of TEDs in certain waters off Mississippi in order to relieve the economic hardship on shrimpers while ensuring adequate protection of threatened and endangered sea turtles. 67 FR 67795 (11/7/02).

WORKER SAFETY:

  • OSHA revised its standards for means of egress so that the requirements will be easier to understand by employers, employees, and others who use them. In addition, OSHA has evaluated the National Fire Protection Association's Standard 101, Life Safety Code, 2000 Edition (NFPA 101-2000), and has concluded that the standard provides comparable safety to the Exit Routes Standard. 67 FR 67949 (11/7/02).

DOJ NOTICES OF SETTLEMENTS:

  • United States v. American Standard, Inc., No. 3:01CV0513RM (N.D. Ind. Oct. 15, 2002). Ten settling CERCLA defendants, along with 28 additional parties who allegedly contributed hazardous wastes to the Four County Landfill site in Fulton County, Indiana, must pay $213,915 in U.S. response costs incurred at the site; a second consent decree requires a settling CERCLA defendant to allow the United States a general unsecured claim of $35,405 for U.S. response costs incurred at the site. 67 FR 67647 (11/6/02).
  • United States v. Color Communications, Inc., No. 99 C 4489 (N.D. Ill. Oct. 21, 2002). A settling CAA and EPCRA defendant that has since implemented measures that bring its facility into compliance with the applicable environmental laws must pay $435,000 in civil penalties and must implement supplemental environmental projects, including the surrender of certain Illinois emission trading credits that it received by reducing facility emissions below levels otherwise allowed by law. 67 FR 67647 (11/6/02).
  • United States v. Oakley-Keesee Ford, Nos. 3:98CV00362, 3:98CV00363 (E.D. Ark. Nov. 4, 2002). A settling CERCLA defendant must pay $200,000 in past and future response costs incurred and to be incurred at the Gurley Pit and South 8th Street Superfund sites in Crittenden County, Arkansas, must pay $100,000 to the Superfund in penalties for its failure to comply with a unilateral administrative order to perform the remedial action at the South 8th Street site, and must pay $10,000 in past and future state response costs. 67 FR 69243 (11/15/02).
  • United States v. Ponderosa Fibres of America, Inc., No. 99-CV-1305 (FJS/RWS) (N.D.N.Y. Oct. 28, 2002). A settling third-party CERCLA defendant must pay $110,000 in U.S. costs incurred at the St. Lawrence Pulp and Paper Superfund Site in Ogdensburg, New York; a second decree requires settling CERCLA defendants to pay $75,000. 67 FR 69243 (11/15/02).
  • Reinhold Industries, Inc. v. National Park Service, No. 01 Civ. 1806 (MBM) (S.D.N.Y. Oct. 11, 2002). A settling CERCLA defendant must pay $500,000 in U.S. response costs incurred at the Valley Forge National Historic Park in Montgomery, Pennsylvania. 67 FR 69244 (11/15/02).
  • United States v. Todd, No. 2:01-2179-11 (D.S.C.) (D.S.C. Nov. 6, 2002). A settling CWA defendant that constructed a logging road in wetlands adjacent to the Little Salkehatchie River in Colleton County, South Carolina, must pay a civil penalty and is prohibited from discharging any pollutants into U.S. waters unless the discharge complies with the CWA and its implementing regulations. 67 FR 69244 (11/15/02).

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

THE CONGRESS

PUBLIC LAWS

  • H.R. 5200 (public lands; Clark County, Nevada), which establishes wilderness areas, promotes conservation, improves public land, and provides for high quality development in Clark County, Nevada, was signed into law by President Bush on November 6, 2002. Pub. L. No. 107-282, 148 Cong. Rec. D1124 (daily ed. Nov. 13, 2002).

CHAMBER ACTION

  • H.R. 1070 (CWA; Great Lakes), which would amend the CWA to authorize EPA to carry out projects and conduct research for remediation of sediment contamination in areas of concern in the Great Lakes, was passed by the House, clearing the measure for the President. 148 Cong. Rec. H8079 (daily ed. Nov. 12, 2002).
  • H.R. 3609 (pipeline safety), which would enhance the security and safety of pipelines, was passed by the Senate. 148 Cong. Rec. S10996 (daily ed. Nov. 13, 2002).

COMMITTEE ACTION

  • S. 1746 (energy) was reported by the Senate Committee on Environment and Public Works. S. Rep. No. 107-335, 148 Cong. Rec. S1084 (daily ed. Nov. 12, 2002). The bill would amend the Atomic Energy Act of 1954 and the Energy Reorganization Act of 1974 to strengthen security at sensitive nuclear facilities.
  • S. 2730 (water resources) was reported by the Senate Committee on Environment and Public Works. S. Rep. No. 107-338, 148 Cong. Rec. S10843 (daily ed. Nov. 12, 2002). The bill would modify certain water resources projects for the Apalachicola, Chattahoochee, and Flint Rivers in Alabama, Florida, and Georgia.
  • S. 2928 (CWA; Lake Champlain) was reported by the Senate Committee on Environment and Public Works. S. Rep. No. 107-339, 148 Cong. Rec. S10887 (daily ed. Nov. 13, 2002). The bill would amend the CWA and the Water Resources Development Act of 2000 to modify provisions relating to the Lake Champlain basin.
  • S. 2983 (navigation; water resources) was reported by the Senate Committee on Environment and Public Works. S. Rep. No. 107-327, 148 Cong. Rec. S10843 (daily ed. Nov. 12, 2002). The bill would authorize a project for navigation at Chickamauga Lock and Dam in Tennessee.
  • S. 2984 (environmental restoration) was reported by the Senate Committee on Environment and Public Works. S. Rep. No. 107-328, 148 Cong. Rec. S10483 (daily ed. Nov. 12, 2002). The bill would authorize a project for environmental restoration at Smith Island, Maryland.
  • S. 2999 (environmental restoration) was reported by the Senate Committee on Environment and Public Works. S. Rep. No. 107-329, 148 Cong. Rec. S10843 (daily ed., Nov. 12, 2002). The bill would authorize a project for environmental restoration at Pine Flat Dam in Fresno County, California.
  • H.R. 1989 (fisheries) was reported by the Senate Committee on Commerce, Science, and Transportation. S. Rep. No. 107-340, 148 Cong. Rec. S10887 (daily ed. Nov. 13, 2002). The bill would reauthorize various fishing conservation management programs.

BILLS INTRODUCED

  • S. 3152 (Allen, R-Va.) (Coastal Barrier Resources System) would clarify the boundaries of the Plum Island Unit of the Coastal Barrier Resources System. 148 Cong. Rec. S10888 (daily ed. Nov. 13, 2002). The bill was referred to the Committee on Environment and Public Works.
  • H.R. 5721 (McInnis, R-Colo.) (land exchange) would facilitate a land exchange to provide for the acquisition of a private inholding in the San Isabel National Forest in Colorado. 148 Cong. Rec. H8731 (daily ed. Nov. 13, 2002). The bill was referred to the Committee on Resources.
  • H.R. 5722 (McInnis, R-Colo.) (wilderness) would designate certain lands in Colorado as wilderness. 148 Cong. Rec. H8731 (daily ed. Nov. 13, 2002). The bill was referred to the Committee on Resources.

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 Convention on International Trade in Endangered Species (CITES), at a meeting in Chile, ruled that Botswana, South Africa and Namibia could engage in ivory sales under strict controls. The ivory--a maximum of 30 tons in South Africa, 20 in Botswana and10 in Namibia--must come from existing stocks taken from elephants that died of natural causes or as a result of a government-regulated problem-animal control program. The trade cannot begin before 2004 and must be conducted pursuant to CITES verification of effective domestic control mechanisms. Trading can be discontinued if CITES finds violations or determines that trading is increasing poaching in other areas of Africa. Zambia's and Zimbabwe's requests were turned down. See http://www.cites.org/eng/prog/MIKE/index.shtml and http://www.timesonline.co.uk/article/0,,3-472722,00.html
  • CITES said that the illegal harvesting, smuggling, and sale of wildlife products is so extensive that it generates revenues exceeded by trade in illegal drugs and weapons and that if the current trend continues will exceed those activities. "In addition to threatening the survival of many plant and animal species, criminal gangs are also exploiting local hunters and fishermen in some of the world's poorest regions," CITES Secretary General Willem Wijnstekers said. "While these hard-pressed workers scour the wilderness to earn small amounts of money to feed their families, the crime syndicates that control the poaching and smuggling reap enormous profits. Policy-makers and the heads of customs and police agencies need to confront the fact that the profits from organized wildlife crime can even exceed those of narcotics or arms." See http://www.cites.org/eng/news/press_release.shtml
  • CITES also took up an Australian proposal to impose strict controls on trade of the Patagonian toothfish--the "Chilean sea bass"--and the related Antarctic toothfish. And Japan again unsuccessfully argued for a relaxation of the ban on commercial whaling. Its representatives said that it would continue to catch approximately 400 whales per year as part of a "research" program. Its fleet departed for Antarctic waters. And Britain was unsuccessful in convincing CITES to allow a farm in the Cayman Islands to sell shells from the endangered green turtle. Georgia's proposal to ban trade of Black Sea bottlenose dolphins was rejected in light of Russian opposition. There was apparently much political infighting (and more) associated with the meeting. See http://news.bbc.co.uk/1/hi/world/americas/2435663.stm
  • The Asian Development Bank adopted a new environmental policy. See http://www.adb.org/Documents/News/2002/nr2002210.asp
  • The World Food Program said that some of the food it recently distributed in Zambia may have included genetically modified corn despite a government ban on importation. Over half the country's population faces starvation.
  • U.S. Trade Representative Robert Zoellick and European Union Trade Commissioner
    Pascal Lamy, speaking at a New York City event hosted by the Council on Foreign Relations, disagreed about the role that environmental protection should play in fashioning trade agreements. Zoellick said Europe's insistence that the two be linked is delaying progress on trade agreements with developing nations.
  • South African health activist Richard Tren said in a commentary that the ban on use of the pesticide dichloro-diphenyl-trichloroethane (DDT) increases the threat of malaria outbreaks in developing countries. See http://www.upi.com/view.cfm?StoryID=20021111-031708-9949r
  • The United Nations Environment Program (UNEP) said that an investigative team in Bosnia had found three locations that are contaminated by depleted uranium munitions from NATO airstrikes in 1995.
  • UNEP commenced the second phase of a five-year desertification program that focuses on nine African countries. The project will seek to utilize indigenous methods to conserve plant life. See http://www.unep.org/Documents/Default.asp?ArticleID=3164&DocumentID=270

CLIMATE CHANGE:

  • An article published in Nature said that wildfires in Indonesian peat bogs and in other tropical areas contribute significantly to global warming and should be taken into account in climate change modeling. See http://www.nature.com
  • A study published in Global Biogeochemical Cycles reached much the same conclusion. See http://www.agu.org/journals/gb/
  • The BioCarbon Fund was launched by the World Bank. "The BioCarbon Fund is an innovative example of making markets for global public goods," said Ian Johnson, World Bank vice-president for sustainable development. "The BioCarbon Fund puts it all together by meeting the triple goal of reducing greenhouse gases in the atmosphere while reversing land degradation, conserving biodiversity, and improving the livelihoods of local communities in poor countries."
  • Canada's Environment Minister, David Anderson, said it was time for the country to ratify the Kyoto Protocol. And the debate over ratification continued to play out in the media. See http://www.canoe.ca/CalgaryNews/cs.cs-11-12-0091.html
  • Nova Scotia Premier John Hamm said that progress was being made in hammering out political differences over ratification, but that Prime Minister Jean Chrétien should delay setting a ratification vote to allow talks to progress. The Prime Minister said "Come on, this is Canada, we're not frightened. Here in Canada, we never run away from a problem. We always face it head on." See http://www.nationalpost.com/search/site/story.asp?id=AFFCFF2A-5CF5-4A2B-AF87-3939CD1C6F50
  • Alberta's Ralph Klein said he would travel to the U.S. to seek support for his opposition to ratification. See http://www.canoe.ca/CalgaryNews/cs.cs-11-08-0080.html
  • Debate continued in Indonesia regarding whether it should operate under the Clean Development Mechanism of the Protocol. See http://www.thejakartapost.com/detailfeatures.asp?fileid=20021112.Q01&irec=0
  • South Korea forwarded ratification papers to the U.N. Framework Convention on Climate Change. See http://english.joins.com/Article.asp?aid=20021112014352&sid=200
  • Tokyo's metropolitan government is considering a measure that would restrict carbon dioxide emissions from factories and other sources. See http://www.yomiuri.co.jp/newse/20021113wo13.htm

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