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Weekly Update Volume 34, Issue 13

05/03/2004

 LITIGATION

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

CAA, FLEET RULES, PREEMPTION:

The U.S. Supreme Court held that certain aspects of local fleet rules do not escape preemption under CAA §209(a) simply because they address the purchase of vehicles rather than their manufacture or sale. The fleet rules prohibit the purchase or lease of vehicles by fleet operators that do not comply with stringent emissions controls. A district court held that the rules were not "standards" and, therefore, could not be preempted. Yet neither the district court's interpretation of "standard" to include only regulations that compel manufacturers to meet specified emission limits nor its resulting distinction between purchase and sales restrictions finds support in §209(a)'s text or the CAA's structure. A "standard relating to the control of emissions from new motor vehicles or new motor vehicle engines" per §209(a) targets vehicles and engines and does not preclude standard-enforcement efforts that can be directed toward manufacturers or purchasers. And a purchase/sale distinction makes no sense since a manufacturer's right to sell federally approved vehicles is meaningless absent a purchaser's right to buy them. The case was therefore vacated and remanded. Scalia, J., delivered the opinion of the Court, in which Rehnquist, C.J., and Stevens, O'Connor, Kennedy, Thomas, Ginsburg, and Breyer, JJ., joined. Souter, J., filed a dissenting opinion.Engine Manufacturers Ass'n v. South Coast Air Quality Management District, No. 02-1343 (U.S. Apr. 28, 2004) (23 pp.).

RCRA, RECYCLED MATERIALS, SOLID WASTE:

The D.C. Circuit held that on remand EPA must explain how the risk assessments it used in exempting certain recycled zinc fertilizer products from regulation under RCRA compare with the risk threshold estimates in a private study. Petitioners were limited to challenging EPA's claim that its study and the private study generated similar results since the petitioners already had the opportunity to challenge the studies and to submit their own studies below. Nevertheless, the court concluded that it erred insofar as it simply accepted EPA's claim that its risk assessment, on which the Agency could properly rely, generated results sufficiently comparable to the private study, on which the Agency did not rely, for the court to use the private study to evaluate whether EPA's claim regarding identity was plausible.Safe Food & Fertilizer v. Environmental Protection Agency, No. 02-1326 (D.C. Cir. Apr. 23, 2004) (7 pp.).

CERCLA, INDEMNITY, ANTI-DEFICIENCY ACT (ADA):

The Federal Circuit held that a company can recover from the government CERCLA response costs incurred at a chemical plant the company built and operated for the government during World War II because the contract's termination supplement is broad enough to include indemnification for CERCLA-related costs. The company had entered into a contract with the government that included reimbursement and indemnification clauses that were later terminated by a supplement that preserved the clauses. Interpreting the ADA as barring the enforcement of express, open-ended indemnification clauses, the lower court denied the company CERCLA response costs it incurred in cleaning up the plant under an EPA consent order. That judgment failed to account for the exception "unless such contract or obligation is authorized by law." Here, §20 of the Contract Settlement Act of 1944 authorized the government to give the indemnification at issue. Accordingly, the court reversed the earlier judgment and remanded for a determination of damages and entry of judgment in favor of the company.E.I. DuPont de Nemours & Co., Inc. v. United States,No. 03-5137 (Fed Cir. Apr. 28, 2004) (22 pp.).

CWA, SENTENCING:

The Seventh Circuit upheld the conviction of a former environmental manager at a petroleum refinery for concealing noncompliant wastewater test results from EPA. The lower court properly applied a two-level "abuse of public trust" enhancement per U.S. Sentencing Guidelines §3B1.3 given the manager's unique position, his responsibility to comply with the municipality's regulations, and his abuse of that position by failing to report the plant's CWA violations under his management. Even though the municipality conducted its own testing, it depended on the data the manager reported. Moreover, the violations directly and significantly affect the public's health and safety.United States v. Snook, No. 02-2304 (7th Cir. Apr. 23, 2004) (19 pp.).

NEPA, ESA, LINCOLN COUNTY LAND ACT OF 2000 (LCLA):

A district court determined that the BLM's failure to prepare an EIS for its desert land sale proposal for a planned residential community was arbitrary and capricious and enjoined the sale until the BLM complies with NEPA. The environmental group that challenged the BLM's proposal has standing. There is a colorable, if somewhat attenuated, geographical nexus between the areas visited by the group and the BLM's action. NEPA therefore protects the groups' concrete interests in those lands. Further, NEPA applies to LCLA land sales. The LCLA requires the BLM to comply with applicable law in disposing of lands and allows the BLM to recover the costs of NEPA compliance. Further, the BLM had ample time to prepare an EIS, and the NEPA claims are ripe. As for the merits, the BLM should have prepared an EIS. The EA raised substantial questions as to whether the project's individual and cumulative impacts on various endangered and threatened species would be significant, thus necessitating an EIS to include reasonable alternatives and possible mitigation measures. Because irreparable harm may occur in the absence of an injunction, and because the balance of harms favors the group, the court enjoined the sale until the BLM issues an EIS.Western Land Exchange Project v. United States Bureau of Land Management, No. CV-N-02-0343-DWH (RAM) (D. Nev. Mar. 22, 2004) (Hagen, J.) (39 pp.) (Plaintiffs' counsel included Christopher J. Krupp of the Western Land Exchange Project in Seattle, WA).

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 established air quality designations and classifications for every area in the United States, including Native American country, for the eight-hour ozone NAAQS.69 FR 23857(4/30/04).
  • EPA promulgated a final rule specifying classifications for the eight-hour ozone NAAQS, dates for revocation of the one-hour ozone NAAQS, how anti-backsliding principles will be applied, attainment dates, and timing of required emission reductions.69 FR 23951(4/30/04).
  • EPA promulgated NESHAPs for automobile and light-duty truck surface coating operations located at major sources of hazardous air pollutants; the standards implement CAA §112(d) by requiring the operations to meet emission standards that reflect the application of maximum achievable control technology.69 FR 22601(4/26/04).
  • EPA delegated to Indiana authority for maximum achievable control technology standards for a variety of substances, processes, and operations regulated under CAA §112.69 FR 22508(4/26/04).

ENERGY:

  • DOE announced the availability of theFY 2005 Preliminary Priority-Setting Summary Report and Actions Proposedand theFY 2005 Technical Support Document for the Department's energy conservation program for consumer products and commercial and industrial equipment, and requested comment on program priorities and a possible expansion of the program's scope to include additional products and equipment in voluntary and/or standards-based program components.69 FR 23699(4/30/04).

HAZARDOUS AND SOLID WASTES:

  • EPA amended the Comprehensive Procurement Guideline IV that implements RCRA and the executive order "Greening the Government Through Waste Prevention, Recycling, and Federal Acquisition," which require EPA to designate items that are or can be made with recovered materials and to recommend practices that procuring agencies can use to obtain such items; the Agency's change specifies seven additional items that, when purchased by federal agencies with appropriated federal funds, must contain the highest percentage of recovered materials practicable.69 FR 24027(4/30/04).
  • EPA announced the availability of a finalRecovered Materials Advisory Noticeand supporting materials, which contain EPA's recommendations to federal procuring agencies interested in purchasing seven newly designated items and three items with revised designations regulated under the amended Comprehensive Procurement Guideline IV.69 FR 24039(4/30/04).
  • EPA entered into a proposed administrative settlement under CERCLA concerning the A-American Environmental Removal site in Alhambra, California; the settling party must pay $15,000 in past EPA response costs.69 FR 23202(4/28/04).

INTERNATIONAL:

  • The Department of State identified all participants, and their respective importing and exporting authorities, eligible for trade in rough diamonds under the Clean Diamond Trade Act of 2003; this revision modifies the list previously published in November 2003.69 FR 23848(4/30/04).

PESTICIDES AND TOXIC SUBSTANCES:

  • EPA announced the availability of and requested public comment on preliminary risk assessments and related documents for carboxin, a pesticide seed treatment; the comment will inform a re-registration eligibility decision for the substance.69 FR 23194(4/28/04).
  • EPA requested public comment on a draft pesticide registration notice, "Labeling Statements on Products Used for Adult Mosquito Control," that provides specific label statements and organizational principles intended to clarify language used to convey the environmental hazards posed by products applied in area-wide adult mosquito control projects; the new statements and principles also give specific use directions and applicator instructions.69 FR 23200(4/28/04).
  • EPA required manufacturers (including importers) and processors of 34 chemicals to conduct in vitro dermal absorption rate testing to inform OSHA evaluations of the need for "skin designations" for the chemicals; this final rule is authorized by the TSCA.69 FR 22402(4/26/04).

PUBLIC HEALTH:

  • The Department of Health and Human Services' National Toxicology Program announced the availability of and requested comment on an expert panel report on the developmental and reproductive toxicity of fluoxetine, an antidepressant.69 FR 23517(4/29/04).

SETTLEMENT:

  • EPA entered into a proposed administrative settlement under the CWA, EPCRA, and RCRA with a company that failed to prepare spill prevention control and countermeasure plans for four facilities where diesel oil was stored in above-ground tanks, failed to comply with hazardous and universal waste management and UST requirements, failed to file emergency planning notifications with state emergency response committees and provide emergency contacts to local emergency planning committees, and failed at seven facilities to submit emergency and hazardous chemical inventory forms to local and state committees and the fire department with jurisdiction over each facility.69 FR 22797(4/27/04).

SMCRA:

  • OSM withdrew a proposed rule amending West Virginia's regulatory program under SMCRA.69 FR 23473(4/29/04).

WATER QUALITY:

  • EPA proposed to designate the Rhode Island Sound Disposal Site (offshore in Rhode Island Sound) as an area protected under the federal Marine Protection and Research Sanctuaries Act to prevent the site from becoming a long-term repository for dredged material produced in Rhode Island, southeastern Massachusetts, and surrounding regions.69 FR 23706(4/30/04).
  • EPA withdrew a proposed rule published in July 2002 that specified national effluent limitations guidelines and new source performance standards for stormwater discharges from construction sites, after concluding that at this time, the current regulation of such discharges via a collection of federal, state, and local programs, regulations, and initiatives is a more effective approach than would be provided by uniform national technology-based standards.69 FR 22472(4/26/04).

WILDLIFE:

  • NOAA's National Marine Fisheries Service (NMFS) announced temporary restrictions on lobster trap/pot and anchored gillnet fishing operations in an area totaling approximately 1,084 square nautical miles east of Nantucket, Massachusetts, for 15 days; the restriction is intended to protect an aggregation of North Atlantic right whales and is consistent with requirements of the Atlantic large whale take reduction plan.69 FR 23664(4/30/04).
  • NMFS proposed regulations necessary to implement a 1981 treaty between the United States and Canada concerning Pacific Coast albacore tuna vessels and port privileges, as authorized by recent legislation; the proposed rule would establish vessel marketing, recordkeeping, and reporting requirements for U.S. albacore tuna fishing vessel operators and vessel marketing and reporting requirements for Canadian albacore tuna fishing vessels operating under the treaty.69 FR 23715(4/30/04).
  • NMFS proposed that the threshold level of incidental mortality and serious injury of marine mammals that would meet the zero mortality rate goal specified in the 1994 amendments to the Marine Mammal Protection Act be 10% of the potential biological removal level for a stock of marine mammals.69 FR 23477(4/29/04).
  • FWS announced the availability of and requested public comment on a draft revised recovery plan for the Sihek, or Guam Micronesian Kingfisher, a bird species listed as endangered under the ESA in 1984 and found in Guam.69 FR 23210(4/28/04).
  • FWS proposed to designate critical habitat for the arroyo toad, a species listed as endangered under the ESA in 1994 and found in riparian habitats of coastal southern California; the Service would designate approximately 138,713 acres of critical habitat in eight Californian counties.69 FR 23253(4/28/04).
  • FWS proposed to designate critical habitat for the federally endangered Riverside fairy shrimp, a species listed under the ESA in 1993 and endemic to vernal pools in southern California; the Service would designate approximately 5,795 acres in California's Los Angeles, Orange, Riverside, San Diego, and Ventura Counties.69 FR 23023(4/27/04).

DOJ NOTICE OF SETTLEMENT:

  • United States v. Macalloy Co., No. 2:04-1201-18 (D.S.C. Apr. 16, 2004). Two settling defendants under CERCLA must pay $357,663 in past EPA response costs associated with the release or threatened release of hazardous substances at the Macalloy Superfund site in Charleston, South Carolina, pay all future EPA costs associated with the site, and perform the site remedy.69 FR 23537(4/29/04).

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

THE CONGRESS

COMMITTEE ACTION:

  • S. 1486 (TSCA; FIFRA), was reported by the Committee on Environment and Public Works. S. Rep. No. 108-256, 150 Cong. Rec. S4686 (daily ed. Apr. 29, 2004). The bill would amend FIFRA and TSCA to implement the Stockholm Convention on Persistent Organic Pollutants, the Protocol on Persistent Organic Pollutants to the Convention on Long-Range Transboundary Air Pollution, and the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade.
  • S. 1910 (forests), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 108-254, 150 Cong. Rec. S4373 (daily ed. Apr. 26, 2004). The bill would direct the Secretary of Agriculture to carry out an inventory and management program for forests derived from public domain land.
  • H.R. 620 (Yosemite National Park), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 108-255, 150 Cong. Rec. S4373 (daily ed. Apr. 26, 2004). The bill would authorize the Secretary of the Interior to provide supplemental funding and other services that are necessary to assist the state of California or local educational agencies in California in providing educational services for students attending schools located within the Yosemite National Park.
  • H.R. 2771 (SDWA), was reported by the Committee on Energy and Commerce. H. Rep. No. 108-476, 150 Cong. Rec. H2482 (daily ed. Apr. 28, 2004). The bill would amend the SDWA to reauthorize the New York City Watershed Protection Program.

BILLS INTRODUCED:

  • S. 2350 (Lieberman, D-Conn.) (Long Island Sound), would establish the Long Island Sound Stewardship System. 150 Cong. Rec. S4428 (daily ed. Apr. 27, 2004). The bill was referred to the Committee on Environment and Public Works.
  • S. 2353 (Craig, R-Idaho) (geologic mapping), would reauthorize and amend the National Geologic Mapping Act of 1992. 150 Cong. Rec. S4492 (daily ed. Apr. 28, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2354 (McCain, R-Ariz.) (National Trails System Act), would amend the National Trails System Act to direct the Secretary of the Interior and the Secretary of Agriculture to jointly conduct a study on the feasibility of designating the Arizona Trail as a national scenic trail or a national historic trail. 150 Cong. Rec. S4492 (daily ed. Apr. 28, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2357 (Baucus, D-Mont.) (Missouri River), would direct the Secretary of the Army, acting through the Chief of Engineers, to maintain a minimum quantity of stored water in certain reservoirs in the vicinity of the upper portion of the Missouri River. 150 Cong. Rec. S4493 (daily ed. Apr. 28, 2004). The bill was referred to the Committee on Environment and Public Works.
  • S. 2371 (Kennedy, D-Mass.) (OSH Act), would amend the OSH Act to expand coverage under the Act, to increase protections for whistleblowers, to increase penalties for certain violators, and for other purposes. 150 Cong. Rec. S4692 (daily ed. Apr. 29, 2004). The bill was referred to the Committee on Health, Education, Labor, and Pensions.
  • S. 2374 (Nickles, R-Okla.) (boundary adjustment), would provide for the conveyance of certain land to the United States and would revise the boundary of Chickasaw National Recreation Area, Oklahoma, and for other purposes. 150 Cong. Rec. S4692 (daily ed. Apr. 29, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 4240 (Kolbe, R-Ariz.) (National Trails System Act), would amend the National Trails System Act to direct the Secretary of the Interior and the Secretary of Agriculture to jointly conduct a study on the feasibility of designating the Arizona Trail as a national scenic trail or a national historic trail. 150 Cong. Rec. H2483 (daily ed. Apr. 28, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4242 (Pearce, R-N.M.) (land jurisdiction), would transfer jurisdiction over certain public lands from the Bureau of Land Management to the Department of Defense. 150 Cong. Rec. H2483 (daily ed. Apr. 28, 2004). The bill was referred to the Committee on Resources.

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

IN THE STATES

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

INTERNATIONAL

GENERAL:

  • Representatives from Benin, Burkina Faso, Cameroon, Chad, Guinea, Ivory Coast, Mali, Niger, and Nigeria met in Paris to discuss ways to cooperate in addressing Niger River water conservation and pollution problems.
  • Protestors marched in the Belarus capital of Minsk on the 18th anniversary of the Chernobyl disaster. They demanded that the Belarus government stop food production in contaminated areas (about a quarter of the country remains contaminated) and that payments be increased to displaced farmers and to those suffering from illness. Police tried to break up the march.
  • The Basel Action Networkallegedthat discarded cell phones and those that are recycled in developing countries pose significant environmental and human health risks, even when the batteries are removed, because of the presence of lead.
  • The United Nations (U.N.) Development Program and the Russian government announced a program to protect wild salmon off the coast of the Kamchatka peninsula.
  • The World Trade Organization held a meeting to discuss the impacts, including environmental, of fishing subsidies.
  • The group International Rivers Network released areportcritical of the World Bank for financing large dam projects in developing countries. Peter Bosshard, one of the report's authors, said that "Bank-funded dams have displaced more than 10 million people, flooded millions of hectares of lands and pushed many countries deeper into debt. Yet the bank is set to repeat its mistakes all over again."

CLIMATE CHANGE:

  • The British government's financial watchdog, the National Audit Watchdog, said that the government's emissions trading program had achieved considerable success.
  • British scientists said that the San Rafael glacier in Chile, which is one of South America's most popular tourist attractions, is rapidly melting.
  • The Swiss government, concerned that 2010 emission reduction targets will not be met, said that it is considering adoption of a fuel tax and an emissions trading program based on the European Union and U.K. models.
  • At the Earth Observation Summit in Tokyo, representatives from 47 nations and more than 2 dozen nongovernmental and scientific organizations agreed on a 10-year plan for a global monitoring system that would assist in evaluating the extent of climate change. At the meeting, Japan announced that it is developing a system of buoys to measure the extent that carbon dioxide is absorbed by the oceans, an indicator of the rate of global warming.

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

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