Weekly Update Volume 32, Issue 5
Note: The cases listed are available from the ELR Document Service.
The Eleventh Circuit affirmed a district court decision that a water district's operation of a pump station without an NPDES permit violates the CWA but vacated the court's injunction prohibiting the district from operating the station. The water that a drainage canal collects and that the pump station conveys into a water conservation area contains pollutants. Thus, pollutants are being added to a U.S. navigable water. Further, the release of water caused by the pump station's operation constitutes an addition of pollutants from a point source. Without the operation of the pump station, the polluted waters from the drainage canal would not normally flow into the water conservation area. The pump station, therefore, is the cause-in-fact of the addition of pollutants to the water conservation area. Therefore, the release of water caused by the pump station's operation constitutes an addition of pollutants from a point source, and the water district must obtain an NPDES permit. Nevertheless, the district court should not have issued an injunction prohibiting the water district from operating the pump station. Severe flooding would occur if the injunction was enforced. Therefore, instead of issuing an injunction that cannot be rightly enforced, the district court should order the water district to obtain an NPDES permit within some reasonable period. If the water district fails to comply with this order, the order may be enforced through the various enforcement mechanisms available under the CWA, such as fines and criminal penalties. Miccosukee Tribe of Indians of Florida v. South Florida Water Management District, No. 00-15703 (11th Cir. Feb. 1, 2002) (8 pp.).
The Tenth Circuit affirmed in part and reversed in part the dismissal of the state of Wyoming's claim against the FWS for interfering with the state's "sovereign right" to manage wildlife within its borders, including its right to vaccinate elk from brucellosis in the National Elk Refuge (NER). The state argued that the FWS acted outside its "statutory powers" under the NWRSIA, as constrained by the Tenth Amendment, when it refused to permit the state to vaccinate elk on the NER to protect its own wildlife and domestic livestock. The Tenth Amendment, however, does not reserve to Wyoming the right to manage wildlife or, more specifically, vaccinate elk on the NER, regardless of the circumstances. Therefore, the doctrine of sovereign immunity barred this portion of the state's complaint. The state also argued that the FWS acted beyond its authority or "ultra vires" in refusing to permit it to vaccinate elk on the NER based on a saving clause in the NWRSIA that reserves to the states the right to manage wildlife on refuge lands within their borders. However, the FWS' decision to refuse to permit the state to vaccinate elk on the NER based on efficacy and biosafety concerns was not, in itself, ultra vires. Congress undoubtedly intended a preeminent federal role for the FWS in the care and management of the National Wildlife Refuge System, and the authority of a government agency to make a decision or resolve a conflict does not disappear simply because that decision or resolution might be erroneous. This claim, therefore, was also properly dismissed. Nevertheless, if, as the state suggests, the vaccine is a safe and effective means of containing brucellosis in free-ranging elk, and the FWS has no viable alternative means of reducing the high rate of brucellosis-infected elk on the NER, the FWS' decision to deny the state's request to vaccinate elk may very well be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. The district court, therefore, erred in dismissing this claim for failure to state a claim upon which relief may be granted. Wyoming v. United States, No. 99-8089 (10th Cir. Feb. 7, 2002) (17 pp.).
A district court held that a chemical company is liable under CERCLA for 6% of past and future response costs incurred and to be incurred in connection with the Buckeye Reclamation Landfill site near St. Clairsville, Ohio. The company arranged for the disposal of hazardous substances at the landfill and, therefore, is a liable party under CERCLA. In addition, there are four groups of PRPs for purposes of allocating responsibility, and the industrial generator and transporter group, which includes the chemical company, are responsible for 60% of past and future response costs. As compared to this group, the chemical company's share is 5%. Therefore, the company's net share of cleanup costs is 3%. However, the company did not meaningfully cooperate in any phase of the CERCLA process even though it was given ample opportunity to do so. Because the lack of cooperation was so persistent, pervasive, and unjustified, the court doubled the company's share of response costs from 3% to 6%. The court also rejected the company's argument that a PRP's contribution claim against it is barred under §4(b) of the Uniform Comparative Fault Act (UCFA). Although a settlement agreement between the PRP and the owner of the property did not extinguish the owner's potential claims against the chemical company, CERCLA does not condition the right of contribution upon compliance with §4(b) of the UCFA. United States v. Consolidated Coal Co., Nos. C-2-94-248, -785. (S.D. Ohio Jan. 31, 2002) (Smith, J.) (29 pp.).
A district court upheld an EPA regulation extending FIFRA §6(a)(2), which requires that pesticide registrants report to EPA on an ongoing basis factual information regarding a pesticide's unreasonable adverse effects on the environment, to opinions regarding unreasonable adverse effects rendered by a registrant's employees or agents. An association challenging the regulation argued that the regulation undermines the availability of the work product doctrine and the attorney-client privilege to pesticide registrants to the extent the regulation requires registrants to report the opinions of lawyers or of non-testifying expert witnesses prepared in preparation of litigation. The association, however, failed to present any facts to which this argument might be applied. The issue, therefore, is not ripe for decision. Consequently, because the record failed to provide any indication that EPA's construction of FIFRA §6(a)(2) is unreasonable or contrary to law, the court upheld the regulation. American Crop Protection Ass'n v. U.S. Environmental Protection Agency, No. 00-0811 (D.D.C. Jan. 31, 2002) (Robertson, J.) (16 pp.).
A district court held that a FIFRA arbitration award requiring a pesticide company to compensate a prior registrant for the use of its data is judicially enforceable. Instead of submitting its own data to support its registration application, the pesticide company used the prior registrant's data pursuant to FIFRA §3(c)(1)(F). The company offered to compensate the prior registrant for the data, but because the parties could not agree on the amount owed, they entered into arbitration. After an arbitration panel entered the final award, the prior registrant sought judicial confirmation of the award. The pesticide company filed a motion to dismiss, arguing that the judiciary lacks jurisdiction to enforce arbitration awards under FIFRA. The plain meaning of FIFRA §3(c)(1)(F) and the arbitration rules promulgated thereunder, however, compel the conclusion that arbitration awards are judicially enforceable. FIFRA provides for “binding arbitration” to effectuate the right to compensation that arises when a follow-on registrant benefits from the use of the data provided to EPA by a prior registrant. Without recourse to judicial enforcement of the arbitration award, the original registrant’s rights would be limited to cancellation, not compensation, as provided for by Congress. Therefore, if the phrase “binding arbitration” is not given its usual meaning, i.e., that the award is enforceable in court, FIFRA’s data-compensation scheme would be rendered meaningless. Likewise, the pesticide company's due process and ripeness challenges were without merit. The court, therefore, confirmed the award. Cheminova A/S v. Griffin L.L.C., No. 01-02139 (ESH) (D.D.C. Jan. 22, 2002) (Huvelle, J.) (21 pp.).
A district court held that genuine issues of material fact exist as to whether groundwater contamination near a city's wells and a subsequent drought caused a water district to seek an alternative water source, thereby causing the city to suffer damages from lost revenues. The city sought over $6 million in damages resulting from companies' contamination of a portion of the city's water supply in the mid-1980s. The city later asserted an additional $15 million in lost revenues caused by a water district's decision to purchase the majority of its water from alternative water sources. The city argued that a 1992 drought, coupled with water restrictions due to the contamination, forced the water district to seek alternative sources. Had there been no contamination, the city would have met its obligations during and after the drought. The companies filed a motion for summary judgment, arguing that the city failed to establish a causal connection. The companies presented sufficient evidence to support their contention that the water district obtained additional water from alternative sources for reasons unrelated to the drought. Nevertheless, the city raised a genuine issue of material fact on whether the contamination and the drought had any effect on the district's decision to seek an alternative water source. A chief engineer for the water district testified that the drought was a final deciding factor that led the district to seek an alternative water source. Evidence also demonstrated that the water district was concerned that the city would be unable to meet the district's demands due to the city's inability to fully utilize its wells. City of Portland v. Boeing Co., No. 99-1761-AS (D. Or. Jan. 14, 2002) (Ashmanskas, J.) (8 pp.).
A district court denied a land association's motion to reopen a 1990 declaratory judgment action in light of the U.S. Supreme Court's decision in Solid Waste Agency of Northern Cook City v. Army Corp. of Engineers, 531 U.S. 159, 31 ELR 20382 (2001) (SWANCC). The 1990 declaratory action was dismissed because the court found it lacked subject matter jurisdiction under the APA and accordingly never reached any substantive issues. Conversely, in SWANCC, the Supreme Court decided the substantive issue of the U.S. Army Corps of Engineers' jurisdiction involving isolated wetlands and migratory birds. Even a liberal construction of Fed. R. Civ. P. Rule 60(b)(6) does not result in the SWANCC decision having any effect on this court's prior decision. The motion, therefore, was denied. Route 26 Land Development Ass'n v. U.S. Government, No. CIV A 88-0643-SLR (D. Del. Jan. 25, 2002) (Robinson, J.) (2 pp.).
The California Supreme Court held that the California Public Utilities Commission's (PUC's) regulation of water quality and safety does not preempt residents' damage claims alleging that water providers subject to PUC regulation violated federal and state drinking water standards, but remaining claims against those water providers are preempted. Residents filed suit in superior court alleging that various water utilities and companies provided them unsafe drinking water causing death, personal injury, and property damage. In response, the PUC began an investigation. The water utilities and companies sought a dismissal pursuant to Public Utilities Code §1759, which bars superior court jurisdiction over any PUC decision or court interference with PUC's official duties. An appellate court ruled that PUC's statutory authority over water quality and its exercise of jurisdiction in addressing water quality issues preempted actions against the regulated water utilities but did not preempt the actions against the nonregulated water providers. However, §1759 only preempts some of the residents' claims against the regulated utilities. The residents’ damage claims alleging water contamination irrespective of whether drinking water standards were met are preempted by §1759. An award of damages on the theory that the public utilities provided unhealthy water, even if that water actually met PUC standards, would interfere with the PUC's continuing supervisory or regulatory program. Similarly, the residents' injunctive relief claims are also preempted. On the other hand, the residents’ damage claims alleging water contamination that violated and exceeded federal and state drinking water standards are not preempted. A jury award based on a finding that a public water utility violated state or federal standards would not interfere with the PUC's policy of requiring compliance with those standards. The appellate court, however, correctly held that §1759 does not bar the superior court action against the nonregulated water providers. Hartwell Corp. v. Superior Court of Ventura County, No. S082782 (Cal. Feb. 4, 2002) (44 pp.).
Copyright© 2002, Environmental Law Institute, Washington, D.C. All rights reserved
Note: Citations below are to the Federal Register.
- EPA entered into a proposed settlement agreement under CAA §112(d) in the cases entitled American Crop Protection Ass'n v. EPA, No. 99-1332 (D.C. Cir.), and BASF Corp. v. EPA, No. 99-1334 (D.C. Cir.), in which petitioners challenged a final rule concerning NESHAPs for pesticide active ingredient production that was published on June 23, 1999 (64 Fed. Reg. 33550). 67 FR 5116 (2/4/02).
- EPA announced that it will administer a federal operating permits program in Connecticut and Maryland because they lack an EPA-approved or adequately administered operating permits program. 67 FR 5490 (2/6/02).
- DOT issued a revised guidance for implementing the March 1999 circuit court decision affecting transportation conformity. 67 FR 5882 (2/7/02).
HAZARDOUS WASTES & SUBSTANCES:
- EPA entered into a proposed administrative settlement under CERCLA §122(h) in connection with the Mr. T. Cozart Well Superfund site in Lewisburg, Tennessee. 67 FR 5811 (2/7/02).
- The U.S. Forest Service announced the list of newspapers that will be used by all ranger districts, forests, and the Regional Office of the Intermountain Region to publish legal notice of all decisions subject to appeal under 36 CFR parts 215 and 217. 67 FR 5560 (2/6/02).
- The U.S. Forest Service announced that it has withdrawn the Rocky Mountain Regional Guide and that it has identified the decisions in the guide that are to be transferred to a regional supplement of the Forest Service directive system. 67 FR 5562 (2/6/02).
SMCRA PROGRAM APPROVALS:
- OSM approved an amendment to Alabama's regulatory program under SMCRA. 67 FR 5204 (2/5/02).
- OSM approved an amendment to Kentucky's regulatory program under SMCRA. 67 FR 5207 (2/5/02).
- EPA established a framework under which the Agency will implement the annual CWA Recognition Awards program formerly known as the Wastewater Management Excellence Awards Program. 67 FR 6137 (2/8/02).
- FWS and the U.S. Forest Service established regulations for seasons, harvest limits, and methods and means related to the taking of fish and shellfish for subsistence uses during the 2002 regulatory year. 67 FR 5889 (2/7/02).
DOJ NOTICES OF SETTLEMENTS:
- United States v. State, No. 01-11161 CAS (RZx) (C.D. Cal. Dec. 28, 2001). A settling CERCLA defendant must pay $15 million in U.S. response costs incurred and to be incurred at the Casmalia Resources Hazardous Waste Disposal site near Casmalia, California. 67 FR 5614 (2/6/02).
- United States v. Gros, No. 4:02CV00125CDP (E.D. Mo. Jan. 23, 2002). Settling CAA defendants must pay a $15,000 civil penalty and must perform injunctive relief. 67 FR 5615 (2/6/02).
- United States v. LWD, Inc., No. 5:99 CV-151-R (W.D. Ky. Jan. 16, 2002). A settling RCRA defendant that failed to comply with a unilateral administrative order requiring it to conduct a trial burn at its hazardous waste incinerator at its Calvert City, Kentucky, facility must pay a $275,000 civil penalty and must conduct the trial burn. 67 FR 5615 (2/6/02).
- United States v. Mountain Metal Co., No. CV-98-C-2562-S (N.D. Ala. Jan. 22, 2002). Settling CERCLA defendants must pay $40,000 in past U.S. response costs incurred at the ILCO battery cracking site in Leeds, Alabama. 67 FR 5616 (2/6/02).
- United States v. Murphy Oil USA, Inc., No. 00-C-409-C (WD Wis. Jan. 24, 2002). A settling CAA, CWA, and RCRA defendant that operates a petroleum refinery in Superior, Wisconsin, must pay a $5.5 million civil penalty; must implement two supplemental environmental projects to reduce sulfur dioxide (SO2) emissions from certain units at the refinery; must install a new pollution control device and perform other injunctive measures to remedy past violations and prevent future violations; must install a tail gas treatment unit to reduce SO2 emissions from its sulfur recovery unit; must apply for a prevention of significant deterioration permit; must implement for five years a program to minimize volatile organic compound emissions from its refinery; must bring certain tanks into compliance with the CWA's spill prevention control and countermeasures requirements; and in order to partially mitigate the penalty, must implement two additional supplemental environmental projects that will reduce SO2 emissions from the refinery by at least 580 tons per year beyond legal requirements. 67 FR 5616 (2/6/02).
- United States v. Oleander Co. (E.D.N.C. Dec. 20, 2001). A settling CWA defendant that discharged pollutants into U.S. waters at a site in New Hanover County, North Carolina, must restore or mitigate affected wetlands, must fill ditches, must pay $15,000 in civil penalties, and must preserve approximately 40 acres of wetlands as part of a supplemental environmental project. 67 FR 6052 (2/8/02).
Copyright© 2002, Environmental Law Institute, Washington, D.C. All rights reserved.
- S. 1908 (Bunning, R-Ky.) (mining) would exclude the receipts and disbursements of the Abandoned Mine Reclamation Fund from the budget of the U.S. Government. 148 Cong. Rec. S286 (daily ed. Feb. 4, 2002). The bill was referred to the Committees on the Budget, and Governmental Affairs.
- S. 1912 (Smith, R-Or.) (ESA) would amend the ESA to require the Secretary of the Interior and the Secretary of Commerce to give greater weight to scientific or commercial data that is empirical or has been field-tested or peer-reviewed. 148 Cong. Rec. S348 (daily ed. Feb. 5, 2002). The bill was referred to the Committee on Environment and Public Works.
- S. 1917 (Jeffords, I-Vt.) (Transportation Equity Act) would provide for highway infrastructure investment at the guaranteed funding level contained in the Transportation Equity Act for the 21st Century. 148 Cong. Rec. S487 (daily ed. Feb. 7, 2002). The bill was referred to the Committee on Environment and Public Works. A companion bill, H.R. 3694, was introduced in the House this period.
- S. 1923 (Lott, R-Miss.) (corporate average fuel economy standards) would provide for increased corporate average fuel economy standards. 148 Cong. Rec. S488 (daily ed. Feb. 7, 2002). The bill was referred to the Committee on Commerce, Science, and Transportation.
- H.R. 3673 (Saxton, R-N.J.) (CWA) would amend the CWA relating to marine sanitation devices. 148 Cong. Rec. H140 (daily ed. Feb. 5, 2002). The bill was referred to the Committee on Transportation and Infrastructure.
- H.R. 3691 (Wilson, R-N.M.) (national trails) would amend the National Trails System Act to designate the Old Spanish Trail as a National Historic Trail. 148 Cong. Rec. H201 (daily ed. Feb. 6, 2002). The bill was referred to the Committee on Resources.
- H.R. 3694 (Young, R-Alaska) (Transportation Equity Act) would provide for highway infrastructure investment at the guaranteed funding level contained in the Transportation Equity Act for the 21st Century. 148 Cong. Rec. H226 (daily ed. Feb. 7, 2002). The bill was referred to the Committee on Transportation and Infrastructure. A companion bill, S. 1917, was introduced in the Senate this period.
- H.R. 3705 (Pombo, R-Cal.) (ESA) would amend the ESA to require the Secretary of the Interior to use the best sound science available in implementing the Act. 148 Cong. Rec. H227 (daily ed. Feb. 7, 2002). The bill was referred to the Committee on Resources.
- H.R. 3706 (Pombo, R-Cal.) (ESA) would amend the ESA to provide a public right-to-know for landowners in implementing the Act. 148 Cong. Rec. H227 (daily ed. Feb. 7, 2002). The bill was referred to the Committee on Resources.
- H.R. 3707 (Pombo, R-Cal.) (ESA) would amend the ESA to improve protection for endangered species habitats. 148 Cong. Rec. H227 (daily ed. Feb. 7, 2002). The bill was referred to the Committee on Resources.
- H.R. 3708 (Thune, R-S.D.) (bioenergy) would continue the USDA program that promotes the use of certain agricultural commodities to produce bioenergy and to expand the program to include animal fats, animal byproducts, and oils as eligible agricultural commodities under the program. 148 Cong. Rec. H277 (daily ed. Feb. 7, 2002). The bill was referred to the Committee on Agriculture.
Copyright© 2002, Environmental Law Institute, Washington, D.C. All rights reserved.
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- At the World Summit for Sustainable Development preparatory committee meeting in New York, Emil Salim, chairman of the committee, presented a report addressing a variety of issues, setting the stage for creation of a progress report and identification of issues to be tackled in August. United Nations Secretary Secretary General Kofi Annan said "[o]ne clear message is emerging: everyone involved, whether governments or farmers, scientists or other stakeholders, wants the Johannesburg outcome to be more than a long statement of good intentions. Rather, they want strong commitments and practical steps that will achieve our common goal of development that is truly sustainable." See http://www.iisd.ca/linkages/2002/pc2/
- Jan Pronk said progress at the upcoming International Conference on Financing for
Development in Monterrey, Mexico, is needed to foster sustainable development by linking financing with sustainability. See http://www.un.org/News/Press/docs/2002/ENVDEV616.doc.htm
- The Organization for Economic Cooperation and Development issued a report urging Japan to do more to promote greenhouse gas reduction and to allow the public an increased role in environmental decisionmaking. See http://www.oecd.org/pdf/M00024000/M00024090.pdf
- Millions participated in a "car-free" day program in Columbia. See http://www.un.org/News/Press/docs/2002/envdev618.doc.htm
- The United Nations is planning the first environmental assessment in Afghanistan in 25 years.
- Officials from several countries met in Georgia to help that country manage and secure radiation sources, both active and abandoned.
- The European Commission issued a report concluding that "severe ozone losses over the Arctic and Europe" continue, "due to slow chlorine decreases and the current increase of bromine concentrations." See http://www.ozone-sec.ch.cam.ac.uk
- The International Program for Technology and Research in Irrigation and Drainage issued a report, Case Studies on Water Conservation in the Mediterranean Region. The report concludes that water shortages in the area will likely intensify. See http://www.fao.org/iptrid/kn_syn_04/kn_syn_04.htm
- Several European countries, including Italy and France, signaled disapproval of a proposed lifting of the European Union's (EU's) moratorium on use of genetically modified organisms (GMOs). The European Commission issued a report addressing biotechnology patent issues; it says that the moratorium has caused the EU to fall behind the U.S. in biotechnology research. See http://europa.eu.int/eur-lex/en/com/cnc/2002/com2002_0027en01.pdf France's Food Safety Agency said that much stricter toxicity testing is necessary before GMO-containing foods can be approved for human consumption. See http://www.afssa.fr
- What is perhaps the most biodiverse lowland forest was discovered in Sumatra, but according to the World Wildlife Fund (WWF) and Australia's Center for Biodiversity Management it is seriously threatened.
- Norway's Ministry of the Environment has proposed standards that would implement EU Directive 2000/53 on End-of-Life Vehicles.
- Delegates from the Convention on Biological Diversity member states met in Montreal. See http://www.unep.org/Documents/Default.asp?DocumentID=234&ArticleID=3003
- Japan said it would seek elimination of the international moratorium on commercial whaling at the next International Whaling Commission meeting, which will be held in April at Shimonoseki.
- France's National Air Council said that the country's Air Quality Act needs to be revised to more effectively implement EU directives and reduce permissible pollutant limits.
- The United Nations Development Program, UNICEF, the World Health Organization and the
United Nations Office for the Coordination of Humanitarian Affairs said a new approach is needed to forestall serious declines in health and poor economic conditions in areas affected by the Chernobyl nuclear incident. It said that millions of people in the region suffer from a "chronic dependency." See http://www.undp.org/dpa/frontpagearchive/2002/february/7feb02/ and http://www.un.org/apps/news/story.asp?NewsID=2817&Cr=Chernobyl&Cr1=
- The European Parliament decided, by a vote of 540-4, that the EU will proceed ahead with ratification of the Kyoto Protocol. It also wants subsequent Commission proposals
for tougher reduction targets to be issued under the codecision procedure so that Parliament can be involved fully. See http://www2.europarl.eu.int
- Warnings from the Bush, a report detailing the effects of climate change on Australia's environment, was released. See http://www.climateaustralia.org
- 2001 was the third warmest year and fifth driest year on record in Canada. See http://www.ec.gc.ca/press/2002/020121_n_e.htm
- Japan's Ministry of Land, Infrastructure, and Transport said that sales of ultra-low emission vehicles were strong in 2001.
- WWF issued a report, Habitats at Risk: Global Warming and Species Loss in Terrestrial Ecosystems, which examines 113 land-based regions. It concludes that much of the world, from the tropics to the poles, is at risk from climate change, and that Australia will be hard hit. Species likely to be at risk include the numbat, sunset frog, chuditch (western quoll), malleefowl, mallee emu-wren and the red-tailed black cockatoo. The report also finds that as global warming changes their habitat, many species will be unable to move to new areas fast enough to survive, raising the possibility of a "catastrophic" loss of species. The author, Associate Professor Jay R Malcolm of Toronto University, warns that more than 80% of ecoregions will suffer extinctions as a result of global warming and that Australia will be "especially hard hit." The authors contend that more than 80% percent of the ecoregions tested will suffer extinctions of plant and animal species as a result of global warming; changes in habitats from global warming will be more severe at high latitudes and altitudes than in lowland tropical areas; some of the most unique and diverse natural ecosystems may lose more than 70% of the habitats upon which their plant and animal species depend: and many habitats will change at a rate approximately 10 times faster than the rapid changes during the recent postglacial period, causing extinctions among species unable to migrate or adapt at this fast pace. See http://www.panda.org/goforkyoto/report.cfm
- The Bush Administration issued a 440-page report that emphasized technological solutions and economic incentives rather than specific emission reduction targets. The report was cautious about emission trading, noting that trading makes sense for some pollutants but not necessarily for greenhouse gases. It also endorses placing countries' emissions in the context of their economic production, an idea President Bush previously articulated. The U.S. emits 20% percent of the world's greenhouse gases but is responsible for 25% of goods and services. The report also says that there is still scientific uncertainty, declaring that "(t)he uncertainty surrounding the science of climate change suggests that some modesty is in order." "We need to recognize that it makes sense to discuss slowing emission growth before trying to stop and eventually reverse it."
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