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Weekly Update Volume 32, Issue 9

03/25/2002

LITIGATION

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

FEDERAL TORT CLAIMS ACT (FTCA), DISCRETIONARY FUNCTION EXCEPTION, CERCLA, RCRA:

The Eleventh Circuit affirmed a district court dismissal of a manufacturer's state-law claims against the United Stated alleging contamination of its property by U.S. Air Force landfills, but the district court's dismissal of the manufacturer's CERCLA and RCRA claims against the United States are reversed. The discretionary function exception to the FTCA bars the manufacturer's state-law claims. The Air Force's determination to have a landfill is a discretionary function. Manuals that govern landfill decisions by the Air Force do not create mandatory obligations that fall outside the discretionary function exception. The manuals state general principles and objectives that, alone, do not equate to a specific, mandatory directive. Further, the disposal of waste on a military base involves policy choices of the kind that the discretionary function exception is designed to shield. In addition, the district court inadequately explained its grant of summary judgment to the United States on the manufacturer's RCRA and CERCLA claims. Therefore, the district court grant of summary judgment is reversed and remanded for a comprehensive analysis of the relevant facts and legal issues surrounding the RCRA and CERCLA claims. OSI, Inc. v. United States, No. 01-13032 (11th Cir. Mar. 12, 2002) (7 pp.).

MIXED SOLID WASTE, PREEMPTION:

The Ninth Circuit held that mixed solid waste is not "property" and, thus, Washington state county and city trash hauling regulations are not preempted by the Federal Aviation Administration Authorizing Act (FAAAA). The FAAAA preempts state regulation of motor carriers transporting property. However, the FAAAA does not preempt local entities from regulating the collection of mixed solid waste loads. Although the term "property" is not defined in the Act, Congress did not show a "clear and manifest" intent to end state and local regulation of garbage and refuse collection merely because the load includes some recyclable material. That the load includes a significant amount of garbage is sufficient to permit local regulation. The court, therefore, vacated the permanent injunction and reversed and remanded the district court's decision. AGG Enterprises v. Washington County, Nos. 00-35449 et al. (9th Cir. Mar. 12, 2002) (17 pp.).

PROPERTY LAW, QUIET TITLE ACTION, FRAUD UPON THE COURT:

The Tenth Circuit affirmed a district court decision dismissing individuals' claim that a quiet title judgment entered in favor of the United States over four years ago should be set aside under Fed. R. Civ. P. 60(b)(6) and 60(b)(4). The individuals alleged that the U.S. attorneys in the quiet title action failed to disclose the existence of a 1931 oil-and-gas lease on the property at issue and the existence of producing wells prior to 1949. They contend that this information was of critical importance because production on the lease severed the mineral rights from the surface estate in the property and the United States could not have acquired the mineral rights when it took title in 1949. Although a claim of fraud cannot be brought under Rule 60(b)(6), the court did not reject the individuals' fraud upon the court claim on procedural grounds because Rule 60(b) permits other means of pursuing the relief they seek. Nevertheless, the record falls far short of establishing fraud upon the court. Only the most egregious misconduct, such as bribery of a judge or members of a jury, or the fabrication of evidence by a party in which an attorney is implicated, will constitute a fraud on the court. Moreover, fraud on the court requires a showing that one has acted with an intent to deceive or defraud the court. Here, the individuals failed to provide the evidence of concealment necessary to support their claim, and they conceded that there had been no "deliberate misconduct" by the government attorneys. The court also rejected the individuals' claim that the quiet title judgment should be set aside under Rule 60(b)(4) because the judgment is void. The court had jurisdiction over the quiet title action and non-party movants were not denied due process by the government's failure to give them notice of the original quiet title action. United States v. Buck, No. 01-7015 (10th Cir. Mar. 8, 2002) (13 pp.).

TAKINGS, OFFER TO DEDICATE, STATUTE OF LIMITATIONS:

The Ninth Circuit affirmed a district court decision that a county's 1998 acceptance of a 1987 irrevocable offer to dedicate a portion of beachfront property was not a taking of the current owner's property. The prior owners of the property that made offers to dedicate to the county a five-foot wide pedestrian and bicycle easement across the property would now be time-barred from pursuing takings claims arising out of the exaction of the offers to dedicate. The current owners, as their successors-in-interest, are similarly time-barred. Further, the current owners, who purchased with knowledge of the county's options to accept the easement, may not, by virtue of that purchase, revive their predecessors' time-barred claims for those takings. A taking occurs when the option to take an easement is granted, not when the option is exercised. Daniel v. County of Santa Barbara, No. 99-56887 (9th Cir. Mar. 12, 2002) (15 pp.).

LACEY ACT, MENS REA, CONSPIRACY:

The Ninth Circuit reversed a Montana licensed hunting guide's convictions for violation of and conspiracy to violate the Lacey Act. The guide, working with a state licensed outfitter, arranged for four hunters to hunt elk in Montana. One hunter did not receive a state hunting license by lottery, and, therefore obtained it through the outfitter, who provided fraudulent information on the license application. The hunter with the outfitter-acquired license subsequently killed a non-brow tine bull in an area restricted to brow tine bull kills. The illegal killing was not reported, and the hunter had the elk hide tanned and shipped out-of-state. Over a year later, the state game warden investigated the guide's practice of outfitting hunts without a state outfitters license. The guide was then indicted and subsequently convicted of one count of conspiracy to violate the Lacey Act and one count of aiding and abetting a violation of the Act. The guide and the outfitter were also convicted on one count of mail fraud in connection with the fraudulent hunting license application. The guide and the outfitter appealed all convictions, and all of the convictions must be reversed. The government failed to prove that the guide possessed the necessary mens rea for a felony Lacey Act violation. Lacey Act §3373(d)(1) provides for felony conviction under the Act, but it requires that a defendant have actual knowledge that the game at question was taken in violation of the law. The government has the burden to prove actual knowledge, but there was no evidence at trial that the guide had knowledge of the illegal kill. Further, there was insufficient evidence to convict the guide of conspiracy. The government offered no agreement between the guide and the hunter as to the accomplishment of an illegal kill. In addition, with regard to the mail fraud convictions, it is impossible to tell from the jury instructions and the district court decision whether the jury based its guilty finding on the theory that the object of the fraud was to obtain money or to obtain a hunting license. Because a hunting license does not constitute property for the purpose of the mail fraud statute, the jury verdict could not be based on the object of fraud being the license. Thus, the conviction must be reversed and remanded for a determination of the object of the fraud. United States v. LeVeque, Nos. 00-30385, -30386 (9th Cir. Mar. 15, 2002) (17 pp.).

CERCLA, OPERATOR LIABILITY, DIVISIBILITY OF HARM:

The Sixth Circuit held that a district court failed to obey a previous Sixth Circuit decision requiring the district court to determine the divisibility of recovery costs at a Superfund site and to use the standard set forth in United States v. Bestfoods, 524 US 51, 28 ELR 21225 (1998), to determine if a municipality was liable as a CERCLA operator. The district court failed to implement the previous court mandate. It merely stated conclusions as to the municipality's liability and about the divisibility of harm at the site. Consequentially, the district court's judgment is reversed and remanded. On remand, the district court must obey the standards set forth in the previous decision. In addition, the district court must hold an evidentiary hearing to allow the municipality to present new trial evidence as to the divisibility of the harm. United States v. Township of Brighton, No. 00-2175 (6th Cir. Mar. 13, 2002) (4 pp.).

CAA, APA, OZONE NONATTAINMENT, NOTICE:

A magistrate judge recommended that EPA be ordered to publish formal CAA ozone attainment determinations for the Birmingham, Alabama, area and the Kent and Queen Annes Counties area in Maryland. Environmental groups brought suit against EPA alleging that the Agency failed to meet the six-month CAA deadlines for ozone attainment determinations in the areas. Both areas were classified as marginal ozone nonattainment areas with CAA-imposed ozone attainment dates of November 15, 1993. Under CAA §181(b)(2), EPA should have made an attainment determination for both areas by May 15, 1994. EPA argued that it had published the determinations, albeit belatedly. In 1997, the state of Alabama requested a redesignation of its area from nonattainment to attainment, but EPA disapproved this request in a rule that included a brief mention of the area's attainment data. EPA claimed that this publication served as the formal determination required by CAA §181(b). Similarly, the Agency claimed that a 1995 draft rule met its §181(b) requirements for the counties. However, both publications provided inadequate notice under the APA and, thus, did not meet §181(b)'s standards for formal determinations. The title to the 1995 rule made no mention of Maryland or the counties and specifically only referenced the state of Virginia. It is unreasonable to expect anyone searching for information on the counties to scrutinize such a role. The later omission of any mention of Maryland and the counties from this rule added to the ambiguity of the attainment status of the area. Moreover, the 1997 rule applied to Alabama's redesignation request, included no invitation to comment on the alleged attainment determination, and, in fact, only mentioned the area's attainment status in two sentences that failed to reference CAA §181. Such a rule does not meet the APA's reasonable opportunity to participate standard. In addition, the court had jurisdiction to review the groups' challenges under a CAA §104 provision giving district courts jurisdiction over a private plaintiff's allegations of failure by EPA to perform a non discretionary duty . Sierra Club v. Whitman, No. 00-2206 (CCK/JMF) (D.D.C. Mar. 11, 2002) (Facciola, J.) (9 pp.).

CERCLA, POTENTIALLY RESPONSIBLE PARTIES (PRPs), INDEMNITY:

A district court granted in part and denied in part several motions and cross motions for summary judgment as to the potential CERCLA liability and possible attendant indemnification of a Hawaiian property owner and several current and prior leaseholders of the property. In 1965, the fee owner leased the property to a company and required indemnity for all violations of law that resulted in suit or damages. In 1983, the leaseholder assigned the lease in the property back to the fee owner. That assignment included a provision by which the fee owner covenanted to indemnify the leaseholder for any liability. The fee owner then leased the property to a company that assigned its interests in the property to another company, which then sold its leasehold interest in the property to the current leaseholder. The current leaseholder discovered pollution at the site, began recovery operations, and initiated a CERCLA §107 cost recovery action and several state-law claims against the fee owner and the prior leaseholders. However, the fee owner cannot be required to indemnify the current leaseholder under the indemnity provision in the 1982 assignment back to the fee owner. The indemnity provision applies to future liability under the remainder of that lease and not to past possible liability. Moreover, because issues of fact remain as to whether the current leaseholder contributed to the pollution at the property either through disposal or passive migration from a leaking UST, the court cannot declare that the current leaseholder is not obligated to defend or indemnify the fee owner under the indemnity provision of the lease. Similarly, it is premature to determine if the current leaseholder is strictly liable as a CERCLA PRP because issues of fact remain as to whether the current leaseholder qualifies for the innocent landowner defense under CERCLA §107(b)(3). Further, the current leaseholder's CERCLA §107 cost recovery action cannot be dismissed because the leaseholder might be able to proceed with the action if it qualifies as an innocent landowner. In addition, it is premature to determine if several of the prior leaseholders are not PRPs. Servco Pacific, Inc. v. Dods, No. CIV. 98-00272SPK (D. Haw. Mar. 8, 2002) (18 pp.).

CWA, §404 DISCHARGE OF DREDGED MATERIAL, §402 DISCHARGE OF POLLUTANTS:

A district court held that a state environmental agency did not violate the CWA when it repaired a dam and caused sediment to be washed downstream. The agency raised the dam to fix the plumbing of an intake pond. When the dam was raised, sediment allegedly washed downstream killing fish and leaving muddy residue on the property of riparian landowners. Several individuals and organizations sued the agency alleging that it violated the CWA by either discharging dredged material without a CWA §404 discharge permit or by discharging pollutants without a CWA §402 permit. The agency, however, was not required to have a CWA §404 permit when it repaired the dam. Although the discharge of dredged materials includes dredging by means of hydraulics, such as raising a dam, the repair of the dam falls within the CWA §404(f)(1)(b) maintenance exception, and the repair did not result in any recapture that would exclude the agency's activities from the maintenance exception. Further, the agency did not need a CWA §402 permit when it repaired the dam. A dam qualifies as a point source from which a discharge can occur, and material removed from a river and subsequently redeposited can qualify as a pollutant under the CWA. Nevertheless, to show a discharge of excavated material replaced into the same body of water there must be a showing of active removal of the material and its redeposit. The individuals and organizations failed to make such a showing in this case. The repair of the dam led to the churning or movement of sediment, but this did not rise to the level of discharge that requires a CWA §402 permit. In addition, the individuals' takings claims are not ripe, and their procedural due process claims fail. Greenfield Mills, Inc. v. Governor O'Bannon, No. 1:00 CV 0219 (N.D. Ind. Mar. 11) (Lee, J.) (37 pp.).

CWA §301, WETLANDS, ADJACENCY:

A district court held that an equestrian center discharged fill to wetlands that were within the U.S. Corps of Engineers' jurisdiction, and, thus, the center violated CWA §301 by discharging sand to the wetlands without a permit. The center argued that under Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 US 159, 31 ELR 20382 (2002), the Corps did not have jurisdiction over the wetlands. Although courts have interpreted the SWANCC decision to limit the Corps' jurisdiction to navigable waters or wetlands adjacent to navigable waters, SWANCC did not effect so substantial a change on the Corps' jurisdiction, and, in this case, SWANCC has no direct relevance. SWANCC involved isolated wetlands lacking a physical/hydrological connection to other waters. Here, the center conceded that there is, at least sometimes, an unbroken line of water from the wetlands at issue to a nearby tributary. Thus, even though the flow might be intermittent, there is a hydrological connection between the wetlands and a tributary sufficient to establish theCorps' jurisdiction. Moreover, the wetlands' connection to the tributary in part through a drainage connection does not remove the wetlands from Corps' jurisdiction. Wetlands must be adjacent to U.S. waters or their tributaries for CWA purposes, and the center claimed that the drainage connection cannot be considered an adequate measure of adjacency. Although the Corps does not define "adjacency," its ordinary meaning implies actual contact, and the drainage connection leads to actual contact with a tributary of U.S. waters. Further, the fact that the tributary is not navigable is irrelevant as long as it eventually flows into a navigable water. In addition, a previous permit that the center received to fill the wetlands is inapplicable to the discharges at issue. Therefore, the court granted summary judgment to the Corps and scheduled hearings to determine a civil penalty for the center's CWA violation. United States v. Lamplight Equestrian Center, Inc, No. 00 C 6486 (N.D. Ill. Mar. 8, 2002) (20 pp.).

CWA, NEPA, NATIONWIDE PERMITS (NWPs):

A district court held that the U.S. Army Corps of Engineers did not violate the CWA, NEPA, the National Historic Preservation Act (NHPA), or the Federal Wildlife Coordination Act (FWCA) when it allowed the construction of three water treatment projects in Utah under the CWA NWP program. Because construction of two of the projects is complete, environmental groups' challenges to their construction are moot, but the court may still consider the adequacy of mitigation measures for the three projects under the NWP program and issue procedural relief if necessary. The Corps properly applied NWP 26, which regulates discharges of dredged material into headwaters and isolated waters, to one project and made a reasonable determination as to which stream in the project was considered the headwaters. The record demonstrates that under the five cubic feet per second headwaters determination in 33 C.F.R. §330.2(d), the Corps reasonably determined that an unnamed stream that impacted the wetlands at issue was the applicable headwaters. Further, the Corps reasonably determined that the three-acre limitation on NWP 26 permits did not apply to construction of one project. The three-acre limitation prevents discharge of dredged material at a project from causing the loss of three acres of U.S. waters, but the record indicates that the construction of the project would impact less than three acres. Similarly, the Corps reasonably determined that a project was authorized by NWP 12, which covers discharges associated with excavation, backfill, or utility bedding. There is no support for the groups' argument that NWP 12 does not allow water projects that run, as here, parallel to a tributary, and the Corps properly considered water quality issues when it verified the use of NWP 12 for the project. Moreover, because the Corps applied NWP 12 to one project and NWP 26 to a separate project, the Corps did not improperly use two or more different NWPs--called stacking--to authorize a single project. The Corps also conducted an appropriate NEPA alternatives analysis for the NWP verifications when the NWPs were first formulated, and the Corps did not err when it required individual permits for two of the projects. In addition, the Corps fully complied with NEPA when it first issued the NWPs at issue. Likewise, the Corps did not violate the NHPA or the FWCA when it authorized the project. Utah Council v. United States Army Corps of Engineers, No. 2:00-CV-00623C (D. Utah Mar. 6, 2002) (Campbell, J.) (32 pp.).

NEPA, PRELIMINARY INJUNCTION, SALVAGE LOGGING:

A district court issued a preliminary injunction halting salvage logging on fire charred lands in Oregon until the BLM resolves serious questions raised by environmental groups as to whether the agency complied with NEPA in authorizing the salvage logging. The BLM completed an EA for the logging but made a FONSI determination, and, thus did not complete an EIS. The groups challenged the BLM's finding and sought a temporary restraining order halting the logging. In so doing, the groups raised serious questions as to whether the salvage logging will have an impact on the environment. There are serious questions as to whether the BLM's EA violated NEPA by failing to disclose respected scientific evidence in contrast to the BLM's final decision to allow the salvage logging and the impacts that such logging would have on the environment. Serious questions also exist as to whether the BLM should have prepared an EIS for the salvage logging, considering opposing scientific evidence and the BLM's conclusion, unsupported by the record, that snow cover would mitigate environmental concerns. Moreover, the groups raised serious questions as to whether the BLM adequately addressed the applicable cumulative impacts of the salvage logging and other activities in the area. Another serious question was whether the BLM adequately considered a rehabilitation-only or restoration alternative to salvage logging. Thus, although much of the salvage logging is already complete, the balance of harms favors the issuance of an injunction to protect the environment from further logging or thinning until BLM addresses the serious questions raised by the groups. League of Wilderness Defenders v. Zielinski, No. 02-75-HA (D. Or. Feb. 25, 2002) (Haggerty, J.) (16 pp.) (Plaintiffs counsel included Ralph Bloemers of the Cascade Resources Advocacy Group in Portland, OR).

TIMBER SALVAGE PROJECT, NEPA, NATIONAL FOREST MANAGEMENT ACT (NFMA):

A district court held that the U.S. Forest Service violated the NFMA in its approval of a timber salvage project in the Manti-La Sal Forest in Utah, but that the court did not have jurisdiction to review NEPA claims brought against the Service by an environmental group. Before approving a forest management plan, and as a way to determine whether the habitat is sufficient for the proposed purposes, the Forest Service identifies management indicator species (MIS) that operate as a class representative for several similar species in the area. In this case, the blue grouse is an MIS identified in the forest plan, and the environmental group claimed that the Forest Service violated the NFMA by approving the project without adequate population data for the blue grouse. Contrary to the Forest Service's argument, the proposed project will involve both dead or dying trees and mature trees, thereby putting the viability of the blue grouse population in the project area at risk and necessitating a population assessment in the Service's analysis of the project. The Forest Service failed to provide any documentation or record evidence that the necessary blue grouse population data was not reliable or could not have been reliably collected by the Forest Service. Given the lack of population data, there was no way for the Forest Service to meet the requirements in the NFMA regulations to analyze population trends, and, therefore, the Service's approval of the project without actual or trend population data was contrary to the governing regulations. Thus, the Forest Service's approval of the plan was reversed. The environmental group, however, failed to exhaust its NEPA claims during the administrative appeal process, and, therefore, the court lacks jurisdiction to hear them now. Utah Environmental Congress v. Zieroth, No. 2:01CV217K (D. Utah) (Kimball, J.) (7 pp.).

ESA, TAKE PROHIBITION EXEMPTIONS, RIPENESS:

A district court held that some of an environmental group's challenges to the National Marine Fisheries Service (NMFS) ESA take prohibition exemptions regarding salmon are not ripe, and that the NMFS was not arbitrary or capricious in promulgating the ESA §4(d) rule. The environmental group failed to demonstrate that delayed review of the substance of the rule allowing the exemptions will cause it hardship. Additionally, the group will have an opportunity to challenge the take exemptions when and if a harm becomes more imminent and they choose to challenge site-specific application of the §4(d) rule. Further, although the §4(d) take exemptions are contained in a finalized rule, the rule is far from the culmination of the NMFS' decisionmaking process, and court consideration of the substantive issues at this stage would have to proceed with little factual development. Thus, the claims challenging the take exemptions are not ripe at this time. For the claims that are ripe, however, the environmental group does not prevail. The language of §4(d) makes it clear that the NMFS may impose a take prohibition under that section. Moreover, the NMFS did not act arbitrarily or capriciously in conducting an EIS on the take prohibition as a whole or in conducting an informal consultation that concluded that the rule was not likely to adversely affect listed species. Washington Environmental Council v. National Marine Fisheries Service, No. C00-1547R (W.D. Wash. Feb. 27, 2002) (Rothstein, J.) (26 pp.). (Counsel for the government included Wayne D. Hettenbach of the US Department of Justice in Washington DC.).

FEDERAL AID TO WILDLIFE RESTORATION ACT (PITTMAN-ROBERTSON ACT), MOOTNESS, STANDING:

A district court granted summary judgment to the FWS in a suit brought against it by an environmental group and individuals that alleged that the FWS and Michigan arbitrarily and capriciously administered four conservation grants to the state under the Pittman-Robertson Act. In 1996 and 1997, the state received its Pittman-Robertson Act grant in one single grant. From 1998 to 2002, the state received four separate grants under the Act for habitat management, operations and maintenance, hunting access, and planning. In 2000, the state discontinued participation in the habitat management grant. As a result, the challenge to the administration of the habitat management grant is moot because the court can issue no relief that would affect the legal interests of the parties. The five-year planning process under the Pittman-Robertson Act does not obligate the federal government or the state to act or dispense funds. Rather, the federal government's obligation to pay funds arises from a yearly grant agreement it enters with the state for the payment of the funds. Likewise, the state's obligation to carry out grant work arises from the yearly grant agreement. Thus, when the state discontinued participation in the habitat management grant and the five-year planning process contemplated in 1997, the state did not improperly terminate a partially completed federal project. Further, the fact that the state continued to participate in the other three grants did not amount to unlawful segmentation of a federal action for NEPA purposes. In addition, the group and the individuals lacked standing to challenge the administration of the remaining three grants. The group and the individuals alleged aesthetic injuries, but such injuries do not constitute a concrete and particularized injury in environmental cases. Moreover, the adverse effects on wildlife and plants alleged by the group as injuries flow from the administration of the habitat management grant and not the planning, hunting, and operations and maintenance grants. The group's and individuals' alleged informational injuries are also insufficient to support standing. Sierra Club v. United States Fish and Wildlife Service, No. 1:00-CV-762 (N.D. Mich. Mar. 6, 2002) (Enslen, J.) (21 pp.).

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

THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register.

AIR:

  • EPA amended the NESHAP for pesticide active ingredient production by extending the compliance date. 67 FR 13507, 67 FR 13513 (3/22/02).

  • EPA expanded the list of acceptable substitutes for ozone-depleting subtances under EPA's significant new alternatives policy program. 67 FR 13272 (3/22/02).

  • EPA proposed to amend the NESHAP for new and existing publicly owned treatment works pursuant to a settlement agreement with the Pharmaceutical Research and Manufacturers of America. 67 FR 13495 (3/22/02).

  • EPA entered into a proposed settlement agreement in General Electric Co. v. United States Environmental Protection Agency, No. 99-1353 (D.C. Cir.), which concerns the NESHAP for Source Categories: General Maximum Achievable Control Technology Standards, published at 64 Fed. Reg. 34921 on June 29, 1999. 67 FR 13326 (3/22/02).

  • EPA withdrew a direct final rule published on January 24, 2002, that relaxed the federal gasoline volatility standard that applies to gasoline supplied to the Denver/Boulder area from June 1st to September 15th (the ozone control season) of each year. 67 FR 13092 (3/21/02).
  • EPA placed in the dockets for the two main rulemakings concerning ozone-smog transport in the eastern part of the United States--the NOx SIP Call and the §126 Rule--additional data relevant to remands by the D.C. Circuit concerning growth rates for seasonal heat input by electric generating units. 67 FR 10844 (3/11/02).
  • EPA updated delegation of authority for NESHAPs to the Washington State Department of Ecology (Ecology), Benton Clean Air Authority (BCAA), Northwest Air Pollution Authority, Puget Sound Clean Air Agency, and Spokane County Air Pollution Control Authority (SCAPCA), and EPA delegated authority for the Consolidated Air Rule to Ecology, BCAA, and SCAPCA. 67 FR 11417 (3/14/02).
  • EPA proposed to promulgate federal implementation plans under the CAA for Native American reservations in Idaho, Oregon, and Washington. 67 FR 11747 (3/15/02).

DRINKING WATER:

  • EPA announced that it intends to approve a revision to Florida's public water system supervision program. 67 FR 13145 (3/21/02).
  • EPA established August 9, 2002, as a new, later date by which large water systems serving more than 10,000 persons must report all contaminant monitoring results they receive before May 13, 2002, for the Unregulated Contaminant Monitoring Regulation monitoring program. 67 FR 11043 (3/12/02).

EXECUTIVE ORDER:

  • President Bush issued Executive Order No. 13261, Providing An Order of Succession in the Environmental Protection Agency and Amending Certain Orders on Succession, that lists the order of EPA officers that shall act as and perform the functions and duties of the office of the EPA Administrator during any period when both the EPA Administrator and Deputy Administrator are unable to perform the functions and duties of the office. 67 FR 13243 (3/21/02).

GENETICALLY MODIFIED ORGANISMS:

  • The Animal and Plant Health Inspection Service received a petition seeking a determination of nonregulated status for cotton designated as Event 15985, which has been genetically engineered for insect resistence. 67 FR 11973 (3/18/02).

HAZARDOUS WASTES & SUBSTANCES:

  • EPA entered into a proposed administrative settlement under CERCLA §122(h) in connection with the Burgess, Inc. Site in Freeport, Illinois. 67 FR 12567 (3/19/02).
  • EPA entered a proposed administrative settlement under CERCLA concerning the Louisiana Oil Recycle & Reuse Site in Baton Rouge, Louisiana, that requires the settling de minimis parties to pay a total of $73,176.87 as payment of past response costs. 67 FR 11114 (3/12/02).
  • EPA deleted regulatory language that classified mineral processing characteristic sludges and by-products being reclaimed as solid wastes under RCRA's hazardous waste management regulations, and codified that the Toxicity Characteristic Leaching Procedure may not be used for determining whether manufactured gas plant waste is hazardous under RCRA. 67 FR 11251 (3/13/02).
  • EPA proposed to enter into a prospective purchaser agreement under CERCLA with Alabama Structural Products, Inc. (ASP), regarding a portion of the Gulf States Steel Superfund Site in Gadsden, Etowah County, Alabama, that provides for the payment of $100,000 from ASP and obligates ASP to fully cooperate with any response actions EPA may take on the property. 67 FR 11334 (3/13/02).
  • EPA proposed to grant a petition submitted by the U.S. Department of Energy Savannah River Operations Office to exclude wastes from various activities at the Savannah River Site from the lists of hazardous wastes under RCRA. 67 FR 11639 (3/15/02).

RADIOACTIVE WASTE:

  • EPA announced the availability of, and is seeking comment on, DOE documents applicable to characterization of transuranic radioactive waste at the Idaho National Engineering and Environmental Laboratory proposed for disposal at the Waste Isolation Pilot Plan. 67 FR 12949 (3/20/02).

TOXIC SUBSTANCES:

  • The Centers for Disease Control and Prevention requests comment on its proposed criteria for selecting new environmental chemicals or categories of chemicals for analytical method development and for selecting additional environmental chemicals or categories of chemicals to appear in future releases of the National Report on Human Exposure to Environmental Chemicals. 67 FR 12996 (3/20/02).

TRANSPORTATION:

  • The National Highway Traffic Safety Administration proposed to extend the availability of a special procedure for calculating the fuel economy of those vehicles that can operate on certain alternative fuels as well as on regular petroleum fuels, for the purpose of determining compliance with the Corporate Average Fuel Economy standards, until the end of the 2008 model year. 67 FR 10873 (3/11/02).

WILDLIFE:

  • The National Marine Fisheries Service (NMFS) partially approved a regulatory amendment under the Fishery Management Plan for Precious Coral Fisheries of the Western Pacific Region and issued a final rule that will implement gear restrictions, size limits, and definitions governing the harvest of precious coral resources managed under the plan. 67 FR 11941 (3/18/02).
  • NMFS announced that the Western Pacific Fishery Management Council submitted a Coral Reef Ecosystems Fishery Management Plan for the Western Pacific Region that is intended to conserve and manage the coral reef ecosystems and associated habitats in the U.S. exclusive economic zones around the American Samoa, Guam, Hawaii, the Commonwealth of the Northern Mariana Islands, and remote U.S. Pacific island areas in the Pacific Ocean. 67 FR 11971 (3/18/02).
  • NMFS enacted a seasonally adjusted gear restriction, starting on March 15, 2002, by closing the Mid-Atlantic Exclusive Economic Zone waters to fishing with gillnets with a mesh size larger than 8-inch stretched mesh in order to reduce the impact of the large-mesh gillnet fisheries on endangered and threatened species of sea turtles. 67 FR 13098 (3/21/02).
  • NOAA announced the dismissal of a consistency appeal under the CZMA concerning a federal hydropower license for the Little Quinnesec Falls project in Wisconsin; the state and appellant have reached an agreement on the project. 67 FR 13126 (3/21/02).

WATER QUALITY:

  • EPA announced final agency action on 27 total maximum daily loads for waters listed in Louisiana's Mermentau and Vermilion/Teche river basins under CWA §303(d). 67 FR 13144 (3/21/02).
  • EPA provided notice of the availability of the draft NPDES general permit for reverse osmosis reject water discharges to certain waters in Massachusetts as authorized by CWA §301(a), and that included notice of intent requirements, effluent limitations, standards, prohibitions, and management practices. 67 FR 11115 (3/12/02).
  • EPA withdrew the cold water biota designated use for Shields Gulch in Idaho. 67 FR 11247 (3/13/02).

DOJ NOTICES OF SETTLEMENTS:

  • United States v. AlliedSignal Inc., Nos. 95-CV-0950-C(Sc), 96-CV-0219-C(Sc) (W.D.N.Y. Feb. 7, 2002). Settling CERCLA defendants must pay $2,745,585 in past EPA response costs incurred at the Bern Metals and Universal Iron and Metals Superfund sites located in Buffalo, New York. 67 FR 12572 (3/19/02).
  • United States v. AlliedSignal Inc., Nos. 95-CV-0950-C(Sc), 96-CV-0219-C(Sc) (W.D.N.Y. Feb. 7, 2002). A settling CERCLA defendant must deposit $300,000 into an interest-bearing escrow account in reimbursement of EPA's past response costs incurred at the Burn Metals site in Buffalo, New York. 67 FR 12573 (3/19/02).
  • United States v. Macdonald, No. 3:01CV00101 (W.D. Va. Mar. 1, 2002). Settling CERCLA defendants must sell their property and pay 60% of the net proceeds from any sale of all or part of that property into a site special account for reimbursement of the Superfund or for future work at the Everdure, Inc., Superfund site in Orange County, Virginia. 67 FR 12573 (3/19/02).
  • United States v. Boise Cascade Corp., No. CV 02-311ST (D. Or. Mar. 13, 2002). A settling CAA defendant that violated prevention of significant deterioration regulations at eight plywood and particle board plants must install state-of-the-art air pollution control equipment over the next three years at its Medford and Elgin, Oregon, operations and the Florien and Oakdale, Louisiana, plants; must select one of three pollution control options to reduce volatile organic compound emissions from its particle board facility in Island City, Oregon, at an estimated cost of $15 million; must pay $4.35 in civil penalties; and must install another $2.9 million in supplemental controls to reduce emissions at the Yakima and Kettle Falls, Washington, plants and to control certain units at the Medford plywood facility. 67 FR 13194 (3/21/02).
  • United States v. Kenneth H. Hunter, Jr., No. 97-9449 CAS (RZx) (C.D. Cal. Feb. 14, 2002). A settling CERCLA defendant that owned and operated a hazardous waste disposal site must pay $6.957 million in response costs incurred and to be incurred at the Casmalia Resources Hazardous Waste Disposal Site near Casmalia, California. 67 FR 10930 (3/11/02).
  • United States v. Muro, No. 00cv1484-B(POR) (S.D. Cal. Feb. 22, 2002). A settling SDWA defendant that owned and operated a trailer park in California must refrain from operating or allowing any other individual or entity to operate any public water system, must take all necessary actions to ensure that third parties do not interfere with the operation of any public water system, must comply with the SDWA if authorized to operate a public water system, must pay a stipulated civil penalty of $500.00 for past violations, and must pay stipulated civil penalties for each future violation of any requirement or deadline of the consent decree. 67 FR 10931 (3/11/02).
  • United States v. Quemetco, Inc., No. CV-02-225-C (W.D. Wash. Jan. 31, 2002). Three settling CERCLA defendants will pay $39,839, $37,981, and $39,139 for natural resource damages at the Tualip Landfill Superfund Site that resulted from the release of hazardous substances at the site. 67 FR 10931 (3/11/02).
  • United States v. Texas Petrochemicals Corporation, No. H-00-3555 (S.D. Tex. Dec. 11, 2001). A settling CAA defendant must pay a civil penalty to the United States in the amount of $113,750 dollars, and must bring its chemical manufacturing facility in Texas into compliance with the Texas Air Quality Control Regulations. 67 FR 10932 (3/11/02).
  • United States v. Marine Shale Processors, Inc., No. CV90-1240 (W.D. La. Feb. 21, 2002). A prior consent decree concerning a settling CWA and RCRA defendant that operates a hazardous waste treatment facility in Morgan City, Louisiana, was amended to extend the date for the purchase of the facility and the date by which the purchaser may make a continuation election. 67 FR 11364 (3/13/02).

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

THE CONGRESS

CHAMBER ACTION

  • H.R. 706 (land conveyance; water resources), which would direct the Secretary of the Interior to convey certain properties in the vicinity of the Elephant Butte Reservoir and the Caballo Reservoir in New Mexico, was passed by the House. 148 Cong. Rec. H946 (daily ed. Mar. 19, 2002).
  • H.R. 1712 (National Park of American Samoa), which would authorize the Secretary of the Interior to make minor adjustments to the boundary of the National Park of American Samoa to include certain portions of the islands of Ofu and Olosega within the park, was passed by the House. 148 Cong. Rec. H948 (daily ed. Mar. 19, 2002).
  • H.R. 3985 (Native American lands), which would amend the Act entitled "An Act to authorize the leasing of restricted Indian lands for public, religious, educational, recreational, residential, business, and other purposes requiring the grant of long-term leases,'' approved August 9, 1955, to provide for binding arbitration clauses in leases and contracts related to reservation lands of the Gila River Indian Community, was passed by the House, 148 Cong. Rec. H945 (daily ed. Mar. 19, 2002), and the Senate. 148 Cong. Rec. S2307 (daily ed. Mar. 21, 2002).

BILLS INTRODUCED

  • S. 2015 (Smith, R-N.H.) (recreation fees) would exempt certain users of fee demonstration areas from fees imposed under the recreation fee demonstration program. 148 Cong. Rec. S1935 (daily ed. Mar. 14, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2016 (Murkowski, R-Alaska) (land exchange) would authorize the exchange of lands between an Alaska Native Village Corporation and the DOI. 148 Cong. Red. S1935 (daily ed. Mar. 14, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2018 (Bingaman, D-N.M.) (Native American lands) 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. 148 Cong. Rec. S. 1974 (daily ed. Mar. 15, 2002). The bill was referred to the Committees on Indian Affairs and Energy and Natural Resources.
  • S. 2033 (Chafee, R-R.I.) (John H. Chafee Blackstone River Valley National Heritage Corridor) would authorize appropriations for the John H. Chafee Blackstone River Valley National Heritage Corridor in Massachusetts and Rhode Island. 148 Cong. Rec. S2076 (daily ed. Mar. 19, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2034 (Voinovich, R-Ohio) (Solid Waste Disposal Act) would amend the Solid Waste Disposal Act to impose certain limits on the receipt of out-of-state municipal solid waste. 148 Cong. Rec. S2076 (daily ed. Mar. 19, 2002). The bill was referred to the Committee on Environment and Public Works.
  • S. 2062 (Durbin, D-Ill.) (fast-track trade authority) would provide fast-track trade negotiating authority to the President. 148 Cong. Rec. S2261 (daily ed. Mar. 21, 2002). The bill was referred to the Committee on Finance.
  • S. 2063 (Lincoln, D-Ark.) (land exchange; Ozark-St. Francie and Ouachita National Forests) would authorize the Secretary of Agriculture to sell or exchange all or part of certain administrative sites and other land in the Ozark-St. Francis and Ouachita National Forests and to use funds derived from the sale or exchange to acquire, construct, or improve administrative sites. 148 Cong. Rec. S2261 (daily ed. Mar. 21, 2002). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 2064 (McCain, R-Ariz.) (environmental conflict resolution) would reauthorize the U.S. Institute for Environmental Conflict Resolution. 148 Cong. Rec. S2261 (daily ed. Mar. 21, 2002). The bill was referred to the Committee on Environment and Public Works.
  • S. 2065 (Campbell, R-Colo.) (air quality; Native American lands) would provide for the implementation of air quality programs developed pursuant to an Intergovernmental Agreement between the Southern Ute Indian Tribes and Colorado concerning Air Quality Control on the Southern Ute Indian Reservation. 148 Cong. Rec. S2261 (daily ed. Mar. 21, 2002). The bill was referred to the Committee on Environment and Public Works.
  • H.R. 3929 (Hall, D-Tex.) (pipeline safety) would provide for the establishment of a cooperative Federal research, development, and demonstration program to ensure the integrity of pipeline facilities. 148 Cong. Rec. H832 (daily ed. Mar. 13, 2002). The bill was referred to the Committees on Science, and Transportation and Infrastructure, and Energy and Commerce.
  • H.R. 3930 (Duncan, R-Tenn.) (CWA) would amend the CWA to authorize appropriations for state water pollution control revolving funds. 148 Cong. Rec. H832 (daily ed. Mar. 12, 2002). The bill was referred to the Committees on Transportation and Infrastructure, and Ways and Means.
  • H.R. 3936 (Hansen, R-Utah) (national trails) would designate and provide for the management of the Shoshone National Recreation Trail. 148 Cong. Rec. H832 (daily ed. Mar. 12, 2002). The bill was referred to the Committee on Resources.
  • H.R. 3937 (Hunter, R-Cal.) (Cibola National Wildlife Refuge) would revoke a Public Land Order with respect to certain lands erroneously included in the Cibola National Wildlife Refuge, California. 148 Cong. Rec. H832 (daily ed. Mar. 12, 2002). The bill was referred to the Committee on Resources.
  • H.R. 3942 (Miller, D-Cal.) (John Muir National Historic Site) would adjust the boundary of the John Muir National Historic Site. 148 Cong. Rec. H832 (daily ed. Mar. 12, 2002). The bill was referred to the Committee on Resources.
  • H.R. 3948 (Udall, D-Colo.) (National Fire Plan) would improve implementation of the National Fire Plan on federal lands managed by the Forest Service and agencies of the DOI. 148 Cong. Rec. H833 (daily ed. Mar. 12, 2002). The bill was referred to the Committees on Agriculture, and Resources.
  • H.R. 3954 (Acevedo-Vila, D-P.R.) (Carribean National Forest) would designate certain waterways in the Caribbean National Forest in the Commonwealth of Puerto Rico as components of the National Wild and Scenic Rivers System. 148 Cong. Rec. H906 (daily ed. Mar. 13, 2002). The bill was referred to the Committee on Resources.
  • H.R. 3955 (Acevedo-Vila, D-P.R.) (national forests) would designate certain National Forest System lands in the Commonwealth of Puerto Rico as components of the National Wilderness Preservation System. 148 Cong. Rec. H906 (daily ed. Mar. 13, 2002). The bill was referred to the Committee on Resources.
  • H.R. 3958 (Hansen, R-Utah) (Bear River Migratory Bird Refuge) would provide a mechanism for the settlement of claims of the state of Utah regarding portions of the Bear River Migratory Bird Refuge located on the shore of the Great Salt Lake, Utah. 148 Cong. Rec. H906 (daily ed. Mar. 13, 2002). The bill was referred to the Committee on Resources.
  • H.R. 3965 (Smith, R-Mich.) (plant disease) would authorize the establishment of a Center for Plant Disease Control in the USDA. 148 Cong. Rec. H931 (daily ed. Mar. 14, 2002). The bill was referred to the Committee on Agriculture.
  • H.R. 3985 (Hayworth, R-Ariz.) (Native American lands) would amend the Act entitled "An Act to authorize the leasing of restricted Indian lands for public, religious, educational, recreational, residential, business, and other purposes requiring the grant of long-term leases," approved August 9, 1955, to provide for binding arbitration clauses in leases and contracts related to reservation lands of the Gila River Indian Community. 148 Cong. Rec. H937 (daily ed. Mar. 18, 2002). The bill was referred to the Committee on Resources.
  • H.R. 3996 (Boehlert, R-N.Y.) (CWA) would amend the CWA to authorize appropriations for water pollution control research, development, and technology demonstration. 148 Cong. Rec. H1002 (daily ed. Mar. 19, 2002). The bill was referred to the Committees on Transportation and Infrastructure, and Science.
  • H.R. 4004 (Kennedy, D-R.I.) (John H. Chafee Blackstone River Valley National Heritage Corridor) would authorize appropriations for the John H. Chafee Blackstone River Valley National Heritage Corridor in Massachusetts and Rhode Island. 148 Cong. Rec. H1002 (daily ed. Mar. 19, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4031 (Cannon, R-Utah) (water resources) would amend the Central Utah Project Completion Act to clarify the responsibilities of the Secretary of the Interior with respect to the Central Utah Project and would redirect unexpended budget authority for the Central Utah Project for wastewater treatment and reuse, would provide for prepayment of repayment contracts for municipal and industrial water delivery facilities, and would eliminate a deadline for such prepayment. 148 Cong. Rec. H1087 (daily ed. Mar. 20, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4040 (Edwards, D-Tex.) (land conveyance) would provide for the conveyance of land at Fort Hood, Texas, in order to facilitate the establishment of a state-run cemetery for veterans. 148 Cong. Rec. H1088 (daily ed. Mar. 21, 2002). The bill was referred to the Committee on Armed Services.
  • H.R. 4044 (Gilchrest, R-Md.) (nutria) would authorize the Secretary of the Interior to provide assistance to Maryland for implementation of a program to eradicate nutria and restore marshland damaged by nutria. 148 Cong. Rec. H1088 (daily ed. Mar. 21, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4062 (Rehberg, R-Mont.) (Land acquisition; Native American lands) would require the Secretary of the Interior to acquire certain land for the benefit of the Crow Tribe of Montana. 148 Cong. Rec. H1089 (daily ed. Mar. 21, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4063 (Reyes, D-Tex.) (United States-Mexico border; environmental health) would improve the health of residents of, and the environment in, the United States-Mexico border area. 148 Cong. Rec. H1089 (daily ed. Mar. 21, 2002). The bill was referred to the Committees on Energy and Commerce, Education and the Workforce, Agriculture, Financial Services, Transportation and Infrastructure, International Relations, and Armed Services.
  • H.R. 4072 (Slaughter, D-N.Y.) (National trails) would authorize the Secretary of the Interior to establish a commemorative trail in connection with the Women's Rights National Historical Park to link properties that are historically and thematically associated with the struggle for women's suffrage. 148 Cong. Rec. H1089 (daily ed. Mar. 21, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4076 (Stump, R-Ariz.) (Agua Fria National Monument) would modify the boundaries of the Agua Fria National Monument in Arizona to clarify BLM administrative responsibilities regarding the Monument. 148 Cong. Rec. H1089 (daily ed. Mar. 21, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4078 (Udall, D-Colo.) (Mining) would provide for the reclamation of abandoned hardrock mines. 148 Cong. Rec. H1089 (daily ed. Mar. 21, 2002). The bill was referred to the Committees on Resources, and Transportation and Infrastructure.

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

IN THE STATES

Click on a state name below to see its information in ELR UPDATE. Or go to http://www.elr.info/State/stateupdate.cfm to view the complete section.

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

INTERNATIONAL

GENERAL

  • Around 90 countries have agreed on new guidelines on wood packaging material that may
    contain dangerous wood-eating insects, the UN Food and Agriculture Organization said. See http://www.fao.org/WAICENT/OIS/PRESS_NE/english/2002/3240-en.html
  • A standing committee of the Convention on International Trade in Endangered Species of Wild Fauna and Flora deleted or modified trade measures imposed on various countries, including the United Arab Emirates, Russia, Fiji, and Vietnam, after receiving pledges of compliance.
  • Conservationists urged the Vatican to invertene in stopping the traditional consumption in some parts of Mexico of sea turtle meat during Lent.
  • Rationing was instituted in areas of Malaysia to address a long-term drought.
  • Beijing was blanketed in dust from desertification.
  • Electricity providers in Europe objected to a European Parliament determination that they must inform customers of their fuel mix and associated emissions.
  • The secretary general of the Organization of African Unity said that U.S. $200 is needed to eliminate old pesticide stocks. See http://www.telecom.net.et/~ena/Newsenglish/84697.1403.htm
  • A legislative committee in Brasil voted to eliminate a ban on the use of genetically modified organisms in agriculture.
  • Xu Kuangdi, Communist Party secretary to China's Academy of Engineering, said an ambitious and expensive project to divert water from the Yangtze River to drought-striken areas in northern China is facing a number of environmental issues.
  • Environmentalists in Russia strongly objected to a proposed plan to construct a floating nuclear power station in the White Sea.
  • Depleted uranium poses a low risk for soldiers and civilians, according to the Royal Society of the U.K.
  • China said that it would begin to process applications for the temporary importation of products containing genetically modified organisms.
  • The European Parliament and Council agreed on a set of measures designed to reduce pollution from motorcycle exhaust fumes by establishing mandatory pollution limits that will apply beginning 2006.
  • The American Lands Alliance said the Bush Administration was not complying with international agreements for the protection of forests. See http://www.americanlands.org/earthsummit.htm
  • Australia's State of the Environment Committee issued a report on the effects of increased salinity on waterways and agricultural areas such as the fertile Murray-Darling basin. See http://www.ea.gov.au/soe/2001/index.html

CLIMATE CHANGE

  • The University of Colorado's National Snow and Ice Data Center said that global warming was to blame for the single largest breakoff from the Antarctic Peninsula ice shelf. The breakoff, from the northern section of the Larsen B ice shelf, sent thousands of icebergs adrift in the Weddell Sea. See http://www.nsidc.org/iceshelves/larsenb2002/index.html
  • Sweden ratified the Kyoto Protocol.
  • Italy's Parliament passed legislation requiring reporting of greenhouse gas and other pollutants.
  • Japan's Environment Ministry said a task force had approved a plan for Kyoto implementation; it would reduce carbon dioxide emissions from industrial sources by 7% from 1990 levels by 2010 and seek to hold transportation-related increases in emissions to 17%.
  • Australia's State of the Environment Committee said that greenhouse gases had increased 17% in the period 1990-1998. See http://www.ea.gov.au/soe/2001/index.html
  • The Pew Center for Climate Change issued a report on the growing number of emissions trades. See http://www.pewclimate.org/projects/trading.cfm

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

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