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Weekly Update Volume 34, Issue 1

01/05/2004

LITIGATION

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

MAGNUSON-STEVENS FISHERY CONSERVATION ACT, CONSULTATION, LOBSTER TRAPS:

The First Circuit dismissed a lobster dealer's and lobster boat operators' appeal of a district court decision sustaining new federal regulations affecting their lobster operations. The federal regulations in question govern lobster catches in the exclusive economic zone (EEZ) and impose, among other things, more stringent limits on the number of lobster traps in certain EEZ waters. The dealer and operators challenged the regulations' new boundary line for the lobster-trap limits. The Secretary of Commerce's failure to engage in a formal consultation with the regional fishery management council regarding the boundary line shift is harmless error. There is no reason to think that formal consultation would have produced a different result in this case. Nor does the adoption of the new boundary line violate national standards 2, 4, and 8 of the Magnuson-Stevens Fishery Conservation Act. Little Bay Lobster Co. v. Evans, No. 02-1864 (1st Cir. Dec. 19, 2003) (20 pp.).

HAZARDOUS WASTE, LITIGATION, INDEMNIFICATION:

The Seventh Circuit held that an automotive interiors corporation is not entitled to declaratory judgment as to which of two companies must indemnify it for any costs arising from leaking hazardous substances. The corporation purchased one of the companies, and then spun off that company's electrical motors division to a third company. All three were named in a lawsuit in Mississippi for hazardous waste contamination. The corporation argued that the first company should be liable, and the two companies each insisted that the other was liable. The corporation then filed the instant suit asking the court for a declaratory judgment that one or the other must assume the defense of the Mississippi litigation and pick up the tab at the end. Such a determination, however, must await the outcome of the environmental litigation pending in Mississippi. The contract between the corporation and the first company gives that company an option but not a duty to defend the corporation in any environmental litigation. And by volunteering an unnecessary defense in Mississippi, the corporation cannot compel a federal court to undertake a premature adjudication about indemnity. Lear Corp. v. Johnson Electric Holdings Ltd., No. 03-2932 (7th Cir. Dec. 30, 2003) (8 pp.).

WILDERNESS ACT, COMMERCIAL ENTERPRISE:

The Ninth Circuit held that a sockeye salmon enhancement project in the Kenai Wilderness in Alaska is a commercial enterprise within a designated wilderness area and is congressionally prohibited by Wilderness Act §1133(c). Congress spoke clearly to preclude commercial enterprise in the designated wilderness, regardless of the form of commercial activity, and regardless of whether it is aimed at assisting the economy with minimal intrusion on wilderness values. Thus, no deference is owed to the FWS' determination regarding the permissibility of the enhancement project if it is a commercial enterprise. Here, the primary effect of the enhancement project is to aid the commercial enterprise of fishermen. And even if the term "commercial enterprise" within designated wilderness is ambiguous, the enhancement project under the total circumstances of this case is a prohibited commercial enterprise within wilderness. The FWS' permit for the project therefore violated the Wilderness Act and the project should be enjoined. Wilderness Society v. United States Fish & Wildlife Service, No. 01-35266 (9th Cir. Dec. 30, 2003) (30 pp.).

PRIVATE EASEMENT, SETTLEMENTS, PRIVITY:

The Ninth Circuit held that a city's public claims against an oil company are barred because they were resolved by a settlement entered into by the California Department of Fish and Game (DFG) but the city's private easement claims are not barred because the city was not in privity with the DFG with regards to these claims. The case arose after the company's pipeline spilled oil onto a marsh that was part of an open space and conservation easement granted to the city by a private landowner. While the city’s public claims were resolved by the settlement entered into by the DFG, the claimed injury to the city’s easement has never been addressed by any court. The lower court, therefore, erred in dismissing the city's private easement claims.  City of Martinez v. Texaco Trading & Transportation, Inc., No. 02-16436 (9th Cir. Dec. 24, 2003) (9 pp.).

Copyright© 2004, Environmental Law Institute, Washington, D.C. All rights reserved

THE FEDERAL AGENCIES

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

 AIR:

  • EPA revised implementation plans concerning the prevention of significant deterioration (PSD) program mandated by Title I of the CAA. 68 FR 74483 (12/24/03).
  • EPA approved amendments to the mobile source provisions of an EPA regional haze rule that applies to an optional program for nine western states and regional Indian tribes. 68 FR 71009 (12/22/03).
  • EPA promulgated NESHAPs for miscellaneous metal parts and products surface coating operations located at major sources of hazardous air pollutants. 69 FR 129 (1/2/04).
  • EPA made available for public review and comment revised drafts of chapters seven and eight of the EPA document "Air Quality Criteria for Particulate Matter," which assesses the latest scientific information on the effects of airborne particulate matter (PM) on public health and welfare for EPA's use in its current review of the NAAQS for PM. 68 FR 75240 (12/30/03).
  • EPA announced a tentative public hearing and called for comment under CAA §209(b) on decisions by the California Air Resource Board to amend the Board's regulations concerning certification requirements and procedures for heavy-duty diesel engines and vehicles, requiring new heavy-duty engines and vehicles (except urban buses) in the state to meet new mandatory nitrogen oxides (NOx) standards in 1998 and subsequent model years, and establishing optional NOx standards for 1995 and subsequent model years. 68 FR 75500 (12/31/03).
  • EPA approved Pennsylvania's municipal solid waste landfill plan for implementing emission guideline requirements promulgated under the CAA. 68 FR 74868 (12/29/03).
  • EPA approved Virgin Islands' petition seeking an exemption from the CAA §165(a) requirement that a PSD permit be obtained prior to the construction of a new gas turbine at the Virgin Islands Water and Power Authority St. Thomas facility. 68 FR 75781 (12/31/03).

DRINKING WATER:

  • EPA finalized a memorandum outlining the Agency's revised policy regarding regulatory requirements under the SDWA for submetered properties in which EPA changed its interpretation of SDWA §1411 to specify that a property owner who installs submeters to track usage of water by tenants will not be subject to SDWA drinking water requirements solely as a result of the administrative act of submetering and billing. 68 FR 74233 (12/23/03).

ENERGY:

  • DOE announced that it is accepting claims in FY 2004 from eligible active uranium and thorium processing sites for reimbursement under Title X of the Energy Policy Act of 1992. 68 FR 74563 (12/24/03).

FUEL ECONOMY:

  • DOT announced that it is seeking comment on possible enhancements to the Corporate Average Fuel Economy (CAFE) program intended to further fuel conservation while protecting motor vehicle safety and the economic vitality of the auto industry. 68 FR 74908 (12/29/03).
  • DOT announced that it is seeking information regarding vehicle manufacturers' future product plans in order to assist the Department in analyzing possible reforms to the CAFE program. 68 FR 74931 (12/29/03).
  • The Department of State announced the availability of its interim fiscal year (FY) 2003 report concerning alternative fuel vehicle use. 68 FR 74287 (12/23/03).

HAZARDOUS AND SOLID WASTES:

  • EPA entered into a proposed administrative settlement under CERCLA for recovery of past response costs associated with the Old Colony Railroad Superfund site in East Bridgewater, Massachusetts. 68 FR 74860(12/29/03).
  • EPA entered into a proposed settlement under CERCLA for recovery of past response costs at the T.H. Agriculture & Nutrition Company Superfund site in Albany, Georgia. 68 FR 74960 (12/29/03).
  • EPA entered into a proposed administrative settlement under CERCLA §122(i) in connection with the Broad Brook Mill Superfund site in East Windsor, Connecticut, in which the settling party must pay $322,301.88 in past EPA response costs and must pay all future response costs. 68 FR 74578 (12/24/03).
  • EPA entered into a proposed settlement under CERCLA concerning the Lagoon Drive Chemicals Removal site in Chula Vista, California, in which the respondent must reimburse $5,000.00 of EPA's $49,000.00 response costs.68 FR 71105 (12/22/03).

NATURAL RESOURCES:

  • The Forest Service amended regulations concerning the roadless area conservation rule to temporarily exempt Alaska's Tongass National Forest from prohibitions against timber harvest, road construction, and reconstruction in inventoried roadless areas; the exemption will be in effect until the USDA promulgates a final rule concerning the application of the roadless rule in Alaska. 68 FR 75136 (12/30/03).
  • The Forest Service provided authority for regional foresters to authorize contracting officers to extend the contract performance time and adjust periodic payment determination dates for certain National Forest System (NFS) timber sale contracts in order to facilitate the harvest of damaged timber from private or other non-NFS lands. 69 FR 29 (1/2/04).
  • USDA's Natural Resources Conservation Service proposed to implement the Conservation Security Program established by the Food Security Act of 1985 and amended by the Farm Security and Rural Investment Act of 2002. 69 FR 193 (1/2/04).
  • NOAA's National Marine Sanctuary Program established indirect cost rates and a policy governing the recovery of indirect costs for the Program's involvement in natural resource damage assessment and restoration activities, effective for all damage assessment and restoration costs associated with cases not settled prior to October 1, 2001.68 FR 75392 (12/31/03).

NUCLEAR WASTE:

  • DOE selected a preferred rail corridor to connect the proposed Yucca Mountain spent nuclear fuel and high level radioactive waste repository in Nevada to the state's existing rail system. 68 FR 74951 (12/29/03).

RULEMAKING:

  • The federal agencies issued their semiannual regulatory agendas, providing specific information on the status of regulations under development and revision. (12/22/03).

SMCRA PROGRAM:

  • OSM approved an amendment to the Indiana regulatory program under SMCRA that revises and adds to rules concerning the protection of groundwater quality. 68 FR 75418 (12/31/03).
  • OSM removed an amendment to the Kentucky program under SMCRA. 68 FR 75423 (12/31/03).
  • OSM determined that the Kentucky General Assembly's House Bill 556 (passed on March 15, 2002), which designates the ridge top of Pine Mountain as the Pine Mountain Trail State Park, does not meet criteria that would allow it to be deemed an amendment to the Kentucky regulatory program under SMCRA. 68 FR 75476(12/31/03).

TOXIC SUBSTANCES:

  • EPA made available for public comment an external review draft titled "Neurotoxicity of Tetrachloroethylene (Perchloroethylene): Discussion Paper," prepared as background material for a planned one day consultation workshop in which EPA will convene a panel of experts to discuss the neurotoxic potential of perchloroethylene to humans under environmental exposure conditions. 68 FR 75241 (12/30/03).

TRADE:

  • The Office of the U.S. Trade Representative requested public comment on the interim environmental review of the proposed U.S.-Australia Free Trade Agreement. 68 FR 75317 (12/30/03).

WATER QUALITY:

  • EPA amended provisions of wastewater discharge regulations for the centralized waste treatment (CWT) point source category in response to petitions by CWT facilities requesting that the Agency reconsider limits and standards for certain pollutants. 68 FR 71014 (12/22/03).
  • EPA updated national recommended water quality criteria for 15 pollutants under CWA §304(a). 68 FR 75507(12/31/03).
  • EPA announced the availability of and requested scientific comment on a draft update to the aquatic life criteria for copper. 68 FR 75552 (12/31/03).
  • EPA announced the availability of and requested scientific comment on a draft update for the aquatic life criteria for diazinon. 68 FR 75555 (12/31/03).
  • EPA published the results of its review of CWA regulations governing the use and disposal of sewage sludge for the purpose of identifying and promulgating regulations for additional toxic pollutants, and issued a final action plan detailing the Agency's planned response to recommendations of the National Research Council for changes in the Agency's standards and practices concerning biosolids applied to land. 68 FR 75531 (12/31/03).
  • EPA announced and requested comment on the Agency's preliminary Effluent Guidelines Program Plan for 2004/2005, which presents EPA's annual review of technology-based national regulations (effluent guidelines) promulgated under CWA §304(b), solicits comment on the preliminary two-year program plan, and describes and solicits comment on the analytical framework EPA employed in the 2003 annual review and the development of the 2004/2005 plan. 68 FR 75515 (12/31/03). 
  • The Coast Guard announced that it will consider alternative testing standards for pollution prevention equipment, including but not limited to standards specified in International Maritime Organization resolutions MEPC.107(49) and MEPC.108(49) for oil-water separators, bilge monitors, cargo monitors, bilge alarms, and the designation of laboratories as approved testing facilities for this equipment. 68 FR 75603 (12/31/03).

WILDLIFE:

  • FWS announced that a draft revised recovery plan for the endangered Alala, or Hawaiian Crow, is available for review. 68 FR 71128 (12/22/03).

DOJ NOTICES OF SETTLEMENT:

  • United States v. City of Corpus Christi, No. C-03-015 (S.D. Tex. Dec. 10, 2003). Settling CERCLA defendants must reimburse $600,000 in U.S. response costs incurred in response to the release or threatened release of hazardous substances from the J.C. Elliot Municipal Landfill site in Corpus Christi, Texas. 69 FR 106 (1/2/04).
  • United States v. City of Hastings, No. 8:03-351 (D. Neb. Dec. 23, 2003). Settling CERCLA defendants must implement the interim remedial action for the Area-Wide Operable Unit 19 at the Hastings Ground Water contamination site in Hastings, Nebraska, pay $2,250,000 in past U.S. response costs, and pay all of the United States' future response costs (estimated at $175,000); the settling federal agency must pay $205,000 plus 6% of interim costs, approximately $12,000. 69 FR 106 (1/2/04).
  • United States v. Gallagher, No. 00-5707-BWK (E.D. Pa. Dec. 12, 2003). A settling CERCLA defendant must make an initial payment of $100,000, pay 100% of the net proceeds from the sale of Kennett Square Junkyard Superfund site in Chester County, Pennsylvania, and pay 50% of the funds generated from amended tax returns as payment for response costs incurred by EPA at the Kennett Square site. 68 FR 74970 (12/29/03).
  • United States v. Grant, No. 00-1536-BR (D. Or. Dec. 19, 2003). A settling CERCLA defendant must sell the Grant Warehouse (located at the Grant Warehouse Superfund site in Portland, Oregon) to the Portland Development Commission, and provide in the purchase and sale agreement that $88,500 of the proceeds (an amount expected to be half the sale price) will be paid in past U.S. response costs incurred at the site. 68 FR 74971 (12/29/03).
  • United States v. Ponderosa Fibres of America, Inc., No. 99-CV-1305 (N.D.N.Y. Dec. 16, 2003). The first of two proposed consent decrees resolves cost recovery, Federal Debt Collection Procedures Act, and Federal Priority Statute claims against four settling CERCLA defendants, collectively, for $140,000 plus interest; the second resolves a cost recovery claim against a fifth defendant for $775,000, to be collected as an allowed general unsecured claim in a bankruptcy action and effective once the second decree is approved by both the U.S. District Court for the Northern District of New York and the United States Bankruptcy Court for the District of Delaware.68 FR 74971 (12/29/03).

Copyright© 2004, Environmental Law Institute, Washington, D.C. All rights reserved. 

THE CONGRESS

Congress is currently not in session but will reconvene January 20, 2004, for the second session of the 108th Congress.

 

Copyright© 2004, Environmental Law Institute, Washington, D.C. 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.cfmto view the complete section.

Copyright© 2004, Environmental Law Institute, Washington, D.C. All rights reserved.

INTERNATIONAL

GENERAL:

  • The protocol under the U.N. Economic Commission for Europe's Convention on Long-Range Transboundary Air Pollution entered into force. It is designed to address emissions of heavy metals such as cadmium, lead, and mercury. Austria, Bulgaria, Canada, the Czech Republic, Denmark, Finland, France, Germany, Luxembourg, Monaco, the Netherlands, Norway, the Republic of Moldova, Romania, Slovakia, Sweden, Switzerland, the United States, and the European Community are parties to the protocol.

EUROPE:

  • European Union (EU) fisheries ministers reached a compromise agreement that is aimed at preventing the extinction of certain species while promoting the financial security of fishing communities. The 15 ministers agreed to quotas for the year 2004 for all fish species. The quotas will be freezing the numbers for cod and hake at 2002 levels while nearly doubling the amount of haddock that can be caught. EU Fisheries Commissioner Franz Fischler praised the agreement. "We have got a fishing policy which offers the chance of long-term recovery as well as agreeing [to] the immediate fishing needs for next year," he said. Germany and Sweden wanted a significant reduction in cod allocations, but Denmark, France, Spain, and the United Kingdom were opposed, citing effects upon fishing communities.

CLIMATE CHANGE:

  • A study published in the journal Science concludes that brazil nut trees in the Brazilian, Bolivian, and Peruvian Amazon face extinction due to unsustainable harvesting practices. In addition to being one of the most profitable natural resources in the area, the tree is an aid against global warming because it absorbs carbon dioxide.
  • A report published in the journal Nature concludes that global warming has caused the tropical Atlantic Ocean to be saltier than it was 50 years ago, while the far northern and southern Atlantic waters are less salty. The result could be colder winters in New England and Europe.

Copyright© 2004, Environmental Law Institute, Washington, D.C. All rights reserved. 

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