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Weekly Update Volume 34, Issue 11

04/19/2004

 LITIGATION

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

CAA, STANDING, EMISSIONS LIMITS:

The D.C. Circuit held that trucking companies lacked standing to challenge EPA's refusal to reconsider CAA emissions limits for 2004 for nitrous oxide and nonmethane hydrocarbon emissions from heavy heavy-duty diesel engines (HHDDE). The companies argued that the cost of complying with the limits would be almost six times EPA's estimate. However, they failed to establish how repealing the limits would affect the obligations of engine manufacturers who are bound by a consent decree that independently require them to meet the 2004 emissions limits as well as upcoming 2007 standards. A ruling favorable to the companies would have no effect on the prices they pay for tractors with HHDDE. Without more than "speculative and unsupported assumptions regarding the future actions of third-party market participants," the court dismissed the petition for lack of standing.Crete Carrier Corp. v. Environmental Protection Agency, No. 02-1089 (D.C. Cir. Apr. 9, 2004) (9 pp.).

CAA, APA, EMISSIONS LIMITS:

The D.C. Circuit denied West Virginia's petition to review EPA's electric generation unit (EGU) growth-factor determinations, which are used to develop nitrogen oxide exhaust limitations on upwind states and EGUs within their borders. Specifically, the state sought review of EPA's response to the court's remand inAppalachian Power Co. v. EPA, 249 F.3d 1032, 31 ELR 20635 (D.C. Cir. 2001), andAppalachian Power Co. v. EPA, 251 F.3d 1026, 31 ELR 20670 (D.C. Cir. 2001), but the Agency satisfied its obligation on remand to engage in reasoned decisionmaking and explain its choice of methodology. Although EPA erred in failing to provide opportunity to comment on new material it added to the remand response, West Virginia offered no evidence to show a substantial likelihood that the rule would have been significantly changed in the absence of the procedural error. The state's additional claims regarding EPA's reduction of electricity demand growth projections by other agencies and its failure to explain its disaggregation methodology were waived when it failed to raise the claims earlier.West Virginia v. Environmental Protection Agency, No. 02-1181 (D.C. Cir. Apr. 9, 2004) (17 pp.).

NATURAL GAS PIPELINES, RIGHT OF FIRST REFUSAL:

The D.C. Circuit held that FERC must provide a reasoned basis for refusing to waive the "right of first refusal" requirement for a natural gas pipeline company's prearranged deal program. FERC granted the company permission to amend its tariff so that it could sell available, unsubscribed capacity, or capacity expected to become available, to a shipper willing to execute an agreement for service to start at a specific future date. FERC's normal mandate of "right of first refusal" could obstruct the program, thus, the company sought a waiver of this requirement. In denying the waiver request, however, FERC failed to give a reasoned explanation. FERC's decision was therefore remanded. Gas Transmission Northwest Corp. v. Federal Energy Regulatory Commission, No. 03-1166 (D.C. Cir. Apr. 13, 2004) (6 pp.).

NEPA, MOOTNESS:

The Eighth Circuit held that the completion of construction on two highway interchange projects in Iowa rendered a citizen group's NEPA challenge of the projects moot. A lower court denied the group's motion for a preliminary injunction and dismissed the case. While the group's appeal was pending, the construction was completed. Consequently, injunctive relief would be impossible, and declaratory relief would be of no import. As for a third highway project that is not yet complete, injunctive relief preventing modifications to the interchange is immature at this time, and it was not improperly segmented from the other interchanges in the EA. Because there is no case or controversy, the court vacated the lower court decision. One Thousand Friends of Iowa v. Mineta, No. 03-1327 (8th Cir. Apr. 13, 2004) (7 pp.).

TAKINGS, ISSUE PRECLUSION, LOCAL ORDINANCE:

The Ninth Circuit held that issue preclusion bars a hotel owner from challenging in federal court a local ordinance that restricts an owner's ability to convert residential hotel rooms to tourist use. The doctrine of issue preclusion can apply to bar relitigation in federal court of issues necessarily decided in state court, notwithstanding that plaintiffs must litigate in state court. Here, the takings challenges raised in state court are identical to the federal claims asserted by the owner and are based on the same factual allegations, the state court decision was a final judgment on the merits, and the owner was a party to the state court adjudication. Moreover, the state court's adjudication of the owner's state takings claim was an equivalent determination of the federal takings claims.San Remo Hotel L.P. v. San Francisco City, No. 03-15853 (9th Cir. Apr. 14, 2004) (18 pp.).

QUIET TITLE ACT, PUBLIC ROADS:

The Tenth Circuit upheld the dismissal of a local group's claim to quiet title to roads on federal lands under the Quiet Title Act. The group filed its claim after the BLM designated the area surrounding the roads a local wilderness study area and declared the area "roadless." Although Congress waived the United States' sovereign immunity to suits seeking to quiet title to certain federal lands and the Quiet Title Act is a plaintiff's exclusive remedy to challenge the government's title to real property, the general public does not have title in public roads. The group, therefore, failed to state an actionable claim under the Act. Consequently, the court did not reach the statute of limitations question on which the lower court based its dismissal.Southwest Four Wheel Drive Ass'n v. Bureau of Land Management, No.03-2138 (10th Cir. Apr. 7, 2004) (4 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 granted Virginia authority to implement and enforce alternative requirements substituting for CAA Title V permit terms and conditions contained in NESHAPs for the pulp and paper industry.69 FR 19946(4/15/04).
  • EPA amended its delegation of authority to North Carolina for the implementation and enforcement of state permit terms and conditions substituting for NESHAPs for the pulp and paper industry and chemical recovery combustion sources at certain sites; the authority now extends to four additional facilities.69 FR 19106(4/12/04).
  • EPA announced the formation of the Ambient Air Monitoring and Methods Subcommittee of the previously established Clean Air Scientific Advisory Committee; the subcommittee will make recommendations concerning an implementation plan for a newly developed draft national ambient air monitoring strategy and a recent coarse particle methods testing study conducted by EPA.69 FR 19180(4/12/04).

HAZARDOUS AND SOLID WASTES:

  • EPA entered into a proposed administrative settlement under CERCLA with multiple settling parties concerning the Atlantic Resources Corporation and Horseshoe Road Superfund sites; after performing supplemental field investigations and baseline ecological risk assessments and feasibility studies for the sites, the parties will receive a 50% credit for costs incurred in that research (up to $350,000, with some exceptions) to be applied to potential future EPA claims for unreimbursed costs incurred by the Agency at the sites.69 FR 19848(4/14/04).
  • EPA entered into a proposed settlement under CERCLA with two parties concerning past and future response costs associated with the Riverhills Battery Superfund site in Tampa, Florida.69 FR 19417(4/13/04).
  • EPA entered into a proposed settlement agreement under CERCLA with four settling parties associated with the Jehl Cooperage Company Inc. Superfund site in Shelby County, Tennessee.69 FR 19182(4/12/04).
  • EPA entered into a proposed administrative order on consent for removal action under CERCLA with three settling parties who must pay past EPA response costs associated with the Tifton Property Superfund site in Lakeland, Florida.69 FR 19183(4/12/04).

NATURAL RESOURCES:

  • DOI established an Outer Continental Shelf Policy Committee to advise on the discretionary functions of the BLM under the Outer Continental Shelf Lands Act and related statutes.69 FR 19876(4/14/04).
  • FWS announced the availability of a final comprehensive conservation plan for the Noxubee National Wildlife Refuge in Mississippi's Noxubee, Oktibbeha, and Winston Counties; the plan describes how the refuge will be managed for the next 15 years.69 FR 19213(4/12/04).

PESTICIDES:

  • EPA granted an experimental use permit for the application of 3.528 pounds of California red scale pheromone to 10,000 acres of citrus to evaluate the substance's use in controlling California red scale.69 FR 19847(4/14/04).

RISK ASSESSMENT:

  • EPA announced the availability of and requested public comment on a draft document,Toxicological Review of Phosgene in Support of Summary Information on Integrated Risk Information Systems, prepared by EPA's National Center for Environmental Assessment.69 FR 20621(4/16/04).
  • The Department of Health and Human Services' Center for the Evaluation of Risks to Human Reproduction (a component of the National Toxicology Program) announced plans to evaluate potential reproductive and developmental toxicities of methylphenidate and adderall, magnesium sulfate, and genistein and soy formula, and requested public comment on these substances.69 FR 19444(4/13/04).

SMCRA PROGRAM:

  • OSM approved revisions to New Mexico's regulatory program under SMCRA.69 FR 19321(4/13/04).

WATER QUALITY:

  • EPA approved Arizona's application under the CWA to administer a state sewage sludge (biosolids) management program where the state has jurisdiction.69 FR 19848(4/14/04).
  • EPA announced the availability of two modified NPDES general permits for log transfer facilities in Alaska; one general permit adds CWA §402 modifications to the CWA §404 permits required for facilities operating prior to October 22, 1985, and the second general permit authorizes discharges from the state's other log transfer facilities.69 FR 19417(4/13/04).
  • EPA announced the availability of the administrative record file for three total maximum daily load determinations and associated calculations prepared for Arkansas waters listed as impaired under CWA §303(d) and targets of the suitSierra Club v. Browner, No. LR-C-99-114 (1999).69 FR 19183(4/12/04).

WILDLIFE:

  • FWS announced a five-year review of the status of the bull trout, a species listed under the ESA in 1999 as threatened in the lower 48 states, and requested scientific and commercial data that could inform an evaluation of the species' classification.69 FR 19449(4/13/04).
  • FWS proposed to designate critical habitat for the California red-legged frog, a species listed as threatened under the ESA in 1996 and generally found in wetlands and coastal drainages in central California; FWS designated approximately 4,138,064 acres in 28 California counties.69 FR 19619(4/13/04).
  • FWS proposed a rule to clarify the membership qualifications for federal subsistence regional advisory councils established under federal subsistence management regulations.69 FR 19968(4/15/04).
  • NOAA's National Marine Fisheries Service (NMFS) published the 2004 proposed List of Fisheries, which categorizes each commercial fishery in the United States into one of three categories based on the level of serious injury and mortality of marine mammals incidental to the fishery.69 FR 19365(4/13/04).
  • NMFS proposed to allow a modification to the flap design on certain types of turtle excluder devices that most shrimp trawlers in the southeastern Atlantic and Gulf of Mexico are required to use to reduce the incidental capture of endangered and threatened sea turtles.69 FR 20571(4/16/04).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Caribbean Petroleum Refining, LP, No. 99-1171 (SEC) (D.P.R. Mar. 24, 2004). A settling defendant under the CWA and RCRA must comply with all terms and provisions of its NPDES permit, comply with CWA post-closure care requirements for its equalization basin, and comply with RCRA requirements and federally enforceable Puerto Rico regulations for USTs at the defendant's site.69 FR 20640(4/16/04).
  • In re GenTek, Inc., No. 02-12968 (Bankr. Ct. D. Del. Apr. 12, 2004). A settling defendant under CERCLA and EPCRA and affiliated debtors must allow a general unsecured claim of $352,437 for unreimbursed EPA response costs incurred through June 27, 2003, in connection with the Allied Chemical Corporation Works site in Front Royal, Virginia, allow a claim of $36,000 for EPCRA violations at the site by a PRP, comply with a unilateral administrative order issued to the PRP requiring implementation of a removal action at the site, comply with a second such order issued to the PRP under RCRA concerning the Delaware Valley Works site in Claymont, Delaware, agree that no discharge under §1141 of the Bankruptcy Code shall be allowed for debtor-owned sites with respect to actions against debtors by the United States under CERCLA and RCRA, and agree that the United States may not issue or seek cleanup orders based on debtors' conduct with respect to sites including the Kim-Stan site in Alleghany County, Virginia, and the Allied Chemical Corporation Works site (except for response costs paid at the latter site through June 27, 2003, and certain obligations of the PRP) prior to the bankruptcy action, but may recover response costs and natural resource damages based on such conduct in an amount approximate to that which the United States would have received if the United States had been allowed unsecured claims under the debtors' reorganization plan.69 FR 20641(4/16/04).
  • United States v. Coltec Industries, Inc., No. 04-1308 (E.D.N.Y. Mar. 29, 2004). Twelve settling parties under CERCLA must perform and fund cleanup at the Liberty Industry Finishing Superfund site in Oyster Bay, New York; cleanup costs are estimated at $32.8 million.69 FR 19877(4/14/04).
  • United States v. Conoco Pipe Line Company, No. CV 04-37-BLG-RFC (D. Mont. Mar. 31, 2004). A settling defendant under the CWA responsible for gasoline spills from the defendant's Seminoe Pipeline near Lodge Grass, Montana, on June 20, 1997, and near Banner, Wyoming, on June 27, 1997, and a crude oil spill from the Glacier Pipeline near Conrad, Montana, on May 7, 2001, must pay a civil penalty of $465,000.69 FR 19878(4/14/0).
  • United States v. NCH Co., Nos. 98-5268(KSH) et al. (D.N.J. Mar. 30, 2004). A settling defendant under CERCLA who is a third-party generator associated with the Higgins Farm Superfund site in Franklin Township, New Jersey, and the Higgins Disposal Superfund site in Kingston, New Jersey, must pay $5,000,000.69 FR 19878(4/14/04).
  • United States v. Dominance Industries, Inc., No. CIV-04-158, (E.D. Okla. Apr. 6, 2004). A settling defendant under the CAA who violated the Oklahoma SIP and CAA PSD provisions and associated regulations must pay $200,000 in civil penalties and perform injunctive relief by installing a system to control volatile organic compound emissions from two fiber dryer exhaust operations at the defendant's facility in Broken Bow, Oklahoma.69 FR 19878(4/14/04).

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

THE CONGRESS

Congress was not in session the week of April 12 but will reconvene on April 19, 2004.

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:

  • Chinese Prime Minister Wen Jiabao was said to have issued an order suspending work on a controversial dam project on the Nu River, one of the three major rivers that originate in the Himalayan Mountains and travel along China's borders with Myanmar, Thailand, and Vietnam.
  • An annual 36-hour seal hunting season was held in Canada, with the government authorizing the killing of up to 300,000 seals despite protests by animal rights groups. Seehttp://news.bbc.co.uk/2/hi/americas/3618901.stm
  • TheNew York Timesreported that an extensive tree-planting desertification effort in China's Taklimakan desert has so far proved unsuccessful.
  • Bank of America said that it had reaffirmed its commitment to the Ceres Principles and that it would also abide by the Equator Principles.
  • Aldabra, the largest raised coral atoll, was named as the proposed site for a luxury hotel/resort complex. Seehttp://www.guardian.co.uk/international/story/0,3604,1190138,00.html
  • Astudypublished inNatureconcluded that while wildlife parks and other protected areas make up 10% of the Earth's land mass, over 300 critically endangered animals and more than 500 other threatened species live in unprotected areas.

EUROPE:

  • The European Commission (EC) decided to refer Italy to the European Court of Justice with regard to a hydroelectric project in Lombardy that involves abstracting water from the Schiesone River (Sondrio). The Commission is concerned that the project will lead to the deterioration of important fluvial habitats within a site that is nominated for special protection under the European Union's (EU's) Habitats Directive. Seehttp://www.europa.eu.int
  • The EC also decided to pursue infringement proceedings against Finland in two separate cases under EU environment law. The Commission will refer Finland to the European Court of Justice over shortcomings in its efforts to halt a decline in the flying squirrel (Pteromys volans) population. This species is protected under the EU's Habitats Directive and Finland is the only place within the EU where it is found. In another case, the Commission sent Finland a final written warning for failing to clean urban wastewater in compliance with EU water protection law.
  • The EC sent Sweden a final written warning regarding noncompliance with the Urban Wastewater Treatment Directive, which addresses nutrient-based, bacterial and viral pollution caused by urban wastewater.
  • The EC sent Austria, Belgium, France, Germany, Italy, Netherlands, Portugal, and Sweden a second written warning for failing to comply with an EU law aimed at promoting the use of low sulfur gasoline and diesel fuels. This law seeks to reduce the amount of sulfur in fuels to 10 mg/kg. The Commission also sent first written warnings to Belgium, Luxembourg, and the United Kingdom for infringing an EU law aimed at protecting the ozone layer. Seehttp://www.europa.eu.int
  • The EC decided to refer Greece to the European Court of Justice for failing to designate enough natural sites for the conservation and protection of wild birds. The EU's Wild Birds Directive requires Member States to designate special protection areas (SPAs) for this purpose. In addition to the insufficient designation of SPAs, some species that the Wild Birds Directive specifically mentions as requiring SPA designation are allegedly insufficiently represented in Greece's existing SPA network.
  • France received a similar letter. France currently has the smallest network of protected areas in the EU, representing just 2.1% of the nation's territory. The Commission asked France to designate further SPAs in order to meet its obligations under EU law. Seehttp://www.europa.eu.int
  • The EC sent Germany a first written warning for failing, in connection with an extension to Frankfurt Airport, to implement correctly an EU law aimed at avoiding major industrial accidents. The Hessian government wishes to proceed with a new northwest runway at Frankfurt Airport, despite the close proximity to the Ticona chemical plant and despite a negative opinion from the German Accident Commission (Störfallkommission). The Commission believes that the land-use planning rules of the EU's Seveso II Directive have not been respected. The Commission will also send Germany final written warnings for failing to implement correctly EU laws on nature conservation and on environmental impact assessment in three other cases. One case concerns the natural site "Niederungen der Unteren Havel" in Brandenburg. Seehttp://www.europa.eu.int
  • The European Parliament gave approval to legislation that when implemented will reduce volatile organic compound (VOC) emissions from paints, varnishes, and car repair products. The Directive will reduce the emissions of VOCs from paints and varnishes and products for vehicle repairs in the present EU Member States by around 280,000 tons per year by 2010. Seehttp://www.europa.eu.int

CLIMATE CHANGE:

  • Indonesia moved toward ratification of the Kyoto Protocol. Seehttp://www.thejakartapost.com/detailnational.asp?fileid=20040408.C04&irec=7
  • Important committees in Russia's Duma (parliament) signaled their opposition to Kyoto ratification, while the powerful Ministry of Industry and Energy joined with several economics ministries in endorsing ratification. "Ratification is inexpedient given the U.S. pullout and the non-participation of many countries with high levels of man-made impact on climatic processes," said the committees on the ecology, the economy, and international affairs. "The Kyoto Protocol poses no threat to the Russian economy," Oleg Pluzhnikov, deputy head of the Ministry of Industry and Energy, replied. Numerous delegates said they were looking for direction from President Vladimir Putin. The Duma is expected to decide before May 20.
  • The Japan Bank for International Cooperation signed an agreement with Mexico to provide loans to Japanese companies performing Kyoto Clean Development Mechanism projects in that country. Seehttp://www.asahi.com/english/business/TKY200404150140.html
  • A study published in the journalNatureasserted that Greenland's ice sheet, which currently covers approximately 772,000 square miles and is up to 1.9 miles thick, may disappear completely within 1,000 years, causing massive worldwide flooding. Seehttp://www.guardian.co.uk/climatechange/story/0,12374,1188079,00.html

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

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