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Weekly Update Volume 34, Issue 15

05/24/2004

 LITIGATION

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

CAA, SIP, OZONE:

The Second Circuit denied an advocacy group's petition to review EPA's approval of a state SIP for attaining NAAQS for ozone by the applicable attainment date, holding that the plan did not violate the CAA or EPA regulations. EPA properly used the weight of evidence analysis to address uncertainties and supplement results from the photochemical grid model to measure ozone. Reliance on air quality models guidelines did not contravene EPA's own regulations since subsequent revisions to the guideline contemplate the use of supplemental analysis, including weight of evidence. Although the state must meet its attainment deadline by 2007, EPA used its delegated authority under CAA §181(a)(5) to grant the state an extension on the attainment deadline if the state met certain criteria in the attainment year. This did not relax the attainment deadline but merely ensured that although compliance might be achieved earlier, EPA would still deem the state in compliance if it attained the standard by 2007. The state's enforceable commitments to further reduce emissions were permissible because they were limited in time and scope, capable of being achieved as part of its overall plan, and consisted of proposed regulations that were specific enough to allow EPA to evaluate their likely efficacy and contribution to the plan as a whole. Accepting the enforceable commitments did not impermissibly and indefinitely extend the statutory deadline simply because part of the process would be concluded in the future. The state had submitted sufficient information by the deadline for EPA to perform its role in assessing the completeness and reasonableness of the state's plan. Environmental Defense v. U. S. Environmental Protection Agency, No. 02-4107 (2nd Cir. May 19, 2004) (39 pp.).

CWA, STANDING, MOOTNESS, RCRA:

The Sixth Circuit held that landowners suing a sewage treatment plant for NPDES permit violations lacked standing since the state had already procured the relief sought by replacing a wastewater treatment plant at substantial cost by the time suit was filed, thereby eliminating any actual or imminent injury in fact. The citizen suit was barred once government enforcement action was under way on the basis that citizen suits are meant to supplement rather than to supplant governmental action. The citizen suit was moot for failure to prove that the permit violations were likely to continue. The RCRA claim was properly dismissed because the relief available under RCRA is no different than that available under the CWA. Ailor v. City of Maynardville, No. 01-6562 (6th Cir. May 17, 2004) (13 pp.).

CAA, CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA):

A California appellate court held that a regional agency properly approved a federal PSD permit for a natural gas power plant under EPA's delegation authority, making state CEQA review inapplicable. The agency's permit approval was timely despite failing to wait for the state's certification process because an executive order issued during the state's energy crisis repealed any regulations that might otherwise apply to the PSD permit application. To the extent that remaining state issues relating to the PSD permit may properly be considered in a state forum, the state's certification process was held to satisfy all required CEQA review. City of Morgan Hill v. Bay Area Air Quality Management DistrictNo. A102518 (Cal. Ct. App. May 14, 2004) (20 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 announced the revocation of refrigerant reclaimer certifications of Refrigerant Management Technologies, Inc., and Refrigerant Reclaim Inc., which means that these companies are no longer authorized to reclaim and sell used refrigerant to a new owner. 69 FR 29076 (5/20/04).
  • EPA approved and announced the availability of the Mobile6.2, an update to Mobile6, motor vehicle emissions factor model for official use in particulate matter SIPs and transportation conformity determinations outside of California. 69 FR 28830 (5/19/04).
  • EPA announced a public hearing for the supplemental proposal for the clean air interstate rule (CAIR), which would require 29 States in the eastern part of the country and the District of Columbia to reduce emissions of sulfur dioxide and nitrogen oxides that contribute significantly to fine particulate matter and 8-hour ozone nonattainment problems in downwind States. 69 FR 28874 (5/19/04).
  • EPA announced the formation of the Title V Task Force, which will seek input from affected entities concerning the performance of CAA title V operating permits programs; the task force's goal is to draft a report for the Permitting/Toxics Subcommittee of the CAA Advisory Committee documenting the performance of the programs, noting which program elements generally are working well or poorly, and indicating areas for improvement. 69 FR 27921 (5/17/04).

HAZARDOUS AND SOLID WASTES:

  • EPA proposed to enter into an administrative settlement, which requires 31 settling parties to make seven payments totaling $10,000,000, under CERCLA, to resolve potential liability for performance of the remdial investigation/feasibility study. 69 FR 28888 (5/19/04).

NATURAL RESOURCES:

  • DOI's National Park Service established the Route 66 Corridor Preservation Program Advisory Council to provide guidance concerning preservation along the corridor that passes through Illinois, Missouri, Kansas, Oklahoma, Texas, New Mexio, Arizona, and California. 69 FR 28143 (5/18/04).

WILDLIFE:

  • FWS designated a critical habitat, pursuant to the ESA, for Ventura marsh milk-vetch, which is in Santa Barbara and Ventura Counties, Cal.69 FR 29100 (5/20/04).
  • FWS adopted special regulations, providing exemption from take provisions under section 9 of the ESA for certain activities related to rodent control, agricultural activities, land maintenance, and water use, and governing take of the threatened Preble's meadow jumping mouse. 69 FR 29101 (5/20/04). 
  • The Federal Subsistence Board's action, which provides an exception to the subsistence management regulations for public lands in Alaska, provided for a subsistence harvest opportunity in the Stikine River. 69 FR 28847(5/19/04).

DOJ NOTICE OF SETTLEMENT:

  • United States v. Waste Management of Washington, Inc. No. C04-983-Z (W.D.Wash. Apr. 30, 2004). A settling party under CERCLA must pay $190,000 to trustees for natural resources damages at the Tulalip landfill superfund site that resulted from the release of hazardous substances. 69 FR 28950 (5/19/04).

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

THE CONGRESS

CHAMBER ACTION:

  • S. 213 (Albuquerque Biological Park Title Clarification Act), which would clear title to certain real property in New Mexico associated with the Middle Rio Grande Project, after agreeing to the committee amendment, was passed by the Senate. 150 Cong. Rec. S. Rept. S5839 (daily ed. May 19, 2004).
  • S. 943 (Kendrick Project Wyoming Act), which would authorize the Secretary of the Interior to contract with the city of Cheyenne, Wyoming, for the storage of the city's water in the Kendrick Project, Wyoming, after agreeing to the committee amendment in the nature of a substitute, was passed by the Senate. 150 Cong. Rec. S. Rept. S5840-41 (daily ed. May 19, 2004).
  • S. 960 (Hawaii Water Resources Act). which would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize certain projects in the State of Hawaii and to amend the Hawaii Water Resources Act of 2000 to modify the water resources study, after agreeing to the committee amendments, was passed by the Senate. 150 Cong. Rec. S. Rept. S5841 (daily ed. May 19, 2004).
  • S. 1516 (Salt Cedar Control Demonstration Act), which would further the purposes of the Reclamation Projects Authorization and Adjustment Act of 1992 by directing the Secretary of the Interior, acting through the Commissioner of Reclamation, to carry out an assessment and demonstration program to control salt cedar and Russian olive, after agreeing to the committee amendment in the nature of a substitute, was passed by the Senate. 150 Cong. Rec. S. Rept. S5844-45 (daily ed. May 19, 2004).
  • S. 1576 (Harpers Ferry National Historical Park Boundary Revision Act), which would revise the boundary of Harpers Ferry National Historical Park, was passed by the Senate. 150 Cong. Rec. S. Rept. S5845 (daily ed. May 19, 2004).
  • S. 1577 (Hydroelectric Project Deadline Extension), which would extend the deadline for commencement of construction of a hydroelectric project in the State of Wyoming, was passed by the Senate. 150 Cong. Rec. S. Rept. S5845-46 (daily ed. May 19, 2004).
  • S. 1848 (Oregon Land Conveyance), which would amend the Bend Pine Nursery Land Conveyance Act to direct the Secretary of Agriculture to sell the Bend Pine Nursery Administration Site in the State of Oregon, after agreeing to the committee amendment in the nature of a substitute, was passed by the Senate. 150 Cong. Rec. S. Rept. S5846 (daily ed. May 19, 2004).
  • S. 2178 (National Park System Laws Technical Amendments Act), which would make technical corrections to laws relating to certain units of the National Park System and to National Park programs, was passed by the Senate. 150 Cong. Rec. S. Rept. S5846-47 (daily ed. May 19, 2004).
  • H.R. 265 (Mount Rainier National Park Boundary Adjustment Act of 2003), which would provide for an adjustment of the boundaries of Mount Rainier National Park, was passed by the House. 150 Cong. Rec. H. Rept. 108-495 (daily ed. May 17, 2004).
  • H.R. 408 (Sleeping Bear Dunes National Lakeshore), which would provide for expansion of Sleeping Bear Dunes National Lakeshore, clearing the measure for the President, was passed by the Senate. 150 Cong. Rec. S. Rept. S5847 (daily ed. May 19, 2004).
  • H.R. 417 (Cibola National Wildlife Refuge), which would revoke a Public Land Order with respect to certain lands erroneously included in the Cibola National Wildlife Refuge, California, after agreeing to the following amendment proposed thereto, was passed by the Senate. 150 Cong. Rec. S. Rept. S5847 (daily ed. May 19, 2004).
  • H.R. 708 (California National Forest Land Conveyance), which would require the conveyance of certain National Forest System lands in Mendocino National Forest, California, to provide for the use of the proceeds from such conveyance for National Forest purposes, clearing the measure for the President, was passed by the Senate. 150 Cong. Rec. S. Rept. S5847 (daily ed. May 19, 2004).
  • H.R. 856 (Texas Water Control Project), which would authorize the Secretary of the Interior to revise a repayment contract with the Tom Green County Water Control and Improvement District No. 1, San Angelo project, Texas, clearing the measure for the President, was passed by the Senate. 150 Cong. Rec. S. Rept. S5847 (daily ed. May 19, 2004).
  • H.R. 1598 (Irvine Basin Surface and Groundwater Improvement Act), which would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to reauthorize the Secretary of the Interior to participate in projects within the San Diego Creek Watershed, California, clearing the measure for the President, was passed by the Senate. 150 Cong. Rec. S. Rept. S5847-48 (daily ed. May 19, 2004).
  • H.R. 3505 (Bend Pine Nursery Land Conveyance), which would amend the Bend Pine Nursery Land Conveyance Act to specify the recipients and consideration for conveyance of the Bend Pine Nursery, clearing the measure for the President, was passed by the Senate. 150 Cong. Rec. S. Rept. S5847-48 (daily ed. May 19, 2004).
  • H.R. 3768 (Timucuan Ecological and Historic Preserve Boundary Revision Act of 2004), which would expand the Timucuan Ecological and Historic Preserve, Florida, was passed by the House. 150 Cong. Rec. H. Rept. 108-493 (daily ed. May 17, 2004).

COMMITTEE ACTION:

  • S. 1687 (Manhattan Project National Historical Park Study Act of 2003), was reported to the Committee on Energy and Natural Resources. S. Rept. No. 108-270, 150 Cong. Rec. S5948-49 (daily ed. May 20, 2004). The bill would direct the Secretary of the Interior to conduct a study on the preservation and interpretation of the historic sites of the Manhattan Project for potential inclusion in the National Park System, with an amendment in the nature of a substitute.
  • S. 1778 (Craig Recreation Land Purchase Act), was reported to the Committee on Energy and Natural Resources. S. Rept. No. 108-271, 150 Cong. Rec. S5948-49 (daily ed. May 20, 2004). The bill would authorize a land conveyance between the United States and the City of Craig, Alaska, with an amendment in the nature of a substitute.
  • S. 1791 (Lease Lot Conveyance Act of 2002), was reported to the Committee on Energy and Natural Resources. S. Rept. No. 108-272, 150 Cong. Rec. S5948-49 (daily ed. May 20, 2004). The bill would amend the Lease Lot Conveyance Act of 2002 to provide that the amounts received by the United States under that Act shall be deposited in the reclamation fund.

BILLS INTRODUCED:

  • S. 2429 (Durbin, D-Ill.)(dams), would authorize the Secretary of the Interior to reallocate costs of the Pactola Dam and Reservoir, South Dakota, to reflect increased demands for municipal, industrial, and fish and wildlife purposes. 150 Cong. Rec. S5535 (daily ed. May 17, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2440 (McCain, R-Ariz.), would direct the Secretary of the Interior and the Secretary of Agriculture to jointly conduct a study of certain land adjacent to the Walnut Canyon National Monument in the State of Arizona. 150 Cong. Rec. S5799 (daily ed. May 19, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2457 (Cantwell, D-Wash.), introduced the Nuclear Waste Cleanup Act. 150 Cong. Rec. S5949 (daily ed. May 20, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2458 (Reid, D-Nev.), would provide for the conveyance of certain public lands in and around historic mining townsites in Nevada. 150 Cong. Rec. S5949 (daily ed. May 20, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2460 (Domenici, R-N.M.), would provide assistance to the State of New Mexico for the development of comprehensive State water plans, and for other purposes. 150 Cong. Rec. S5949 (daily ed. May 20, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2469 (Talent, R-Mo.), would amend the National Historic Preservation Act to provide appropriation authorization and improve the operations of the Advisory Council on Historic Preservation. 150 Cong. Rec. S5949 (daily ed. May 20, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2470 (Bond, R-Mo.), would enhance navigation capacity improvements and the ecosystem restoration plan for the Upper Mississippi River and Illinois Waterway System. 150 Cong. Rec. S5949 (daily ed. May 20, 2004). The bill was referred to the Committee on Environment and Public Works.
  • H.R. 4389 (Issa, R-Cal.), would authorize the Secretary of the Interior to construct facilities to provide water for irrigation, municipal, domestic, military, and other uses from the Santa Margarita River, California, and for other purposes. 150 Cong. Rec. H3390 (daily ed. May 19, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4393 (Case, D-Haw.), would direct the Secretary of the Interior to study the suitability and feasibility of designating certain lands along the northern coast of Maui, Hawaii, as a unit of the National Park System. 150 Cong. Rec. H3390 (daily ed. May 19, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4397 (English, R-Pa.), would temporarily exempt scrapping of naval vessels and Maritime Administration vessels from certain environmental statutes governing handling of hazardous materials.150 Cong. Rec. H3390 (daily ed. May 19, 2004). The bill was referred to the Committee on Energy and Commerce, and in addition to the Committees on Armed Services, and Transportation and Infrastructure.
  • H.R. 4413 (Terry, R-Neb.), would require certain terms and conditions for the siting, construction, expansion, and operation of liquefied natural gas import terminals, and for other purposes. 150 Cong. Rec. H3437 (daily ed. May 20, 2004). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 4416 (Ehlers, R-Mich.), would establish the Great Lakes Protection and Restoration Committee. 150 Cong. Rec. H3437 (daily ed. May 20, 2004). The bill was referred to the Committee on Resources, and the Committee on Transportation and Infrastructure.
  • H.R. 4421 (Obey, D-Wis.), would make appropriations for the Environmental Protection Agency for the fiscal year ending September 30, 2005, and for other purposes. 150 Cong. Rec. H3437 (daily ed. May 20, 2004). The bill was referred to the Committee on Appropriations, and the Committee on Ways and Means.
  • H.R. 4443 (Hefley, R-Colo.), would amend the National Historic Preservation Act to extend the authorization of appropriations for the historic preservation fund. 150 Cong. Rec. H3438 (daily ed. May 20, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4459 (Pombo, R-Cal.), would authorize the Secretary of the Interior, acting through the Bureau of Reclamation and in coordination with other Federal, State, and local government agencies, to participate in the funding and implementation of a balanced, long-term groundwater remediation program in California, and for other purposes. 150 Cong. Rec. H3439 (daily ed. May 20, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4461 (Renzi, R-Ariz.), would direct the Secretary of the Interior and the Secretary of Agriculture to jointly conduct a study of certain land adjacent to the Walnut Canyon National Monument in the State of Arizona. 150 Cong. Rec. H3439 (daily ed. May 20, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4466 (Tancredo, R-Colo.), would amend the Endangered Species Act of 1973 to exclude the Preble's Meadow Jumping Mouse from lists of endangered species and threatened species published under that Act. 150 Cong. Rec. H3439 (daily ed. May 20, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4469 (Woolsey, D-Cal.), would authorize appropriations to the Secretary of the Interior for the restoration of the Angel Island Immigration Station in the State of California. 150 Cong. Rec. H3439 (daily ed. May 20, 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:

  • The 2001 Stockholm Convention on Persistent Organic Pollutants (POPs) entered into force. Signatory governments will meet in Punta del Este, Uruguay, in May 2005 for the first Conference of the Parties to the Convention. They will discuss reduction or elimination of dioxins and furans, which are byproducts of combustion, assistance to countries in malarial regions to replace DDT (commonly used as an insecticide) with safer alternatives, and support for efforts of national governments to develop implementation plans.
  • Biotechnology holds great promise for agriculture in developing countries, but so far only farmers in a few developing countries are reaping these benefits, the Food and Agriculture Organization (FAO) said in its annual report The State of Food and Agriculture 2003-04. Six countries (Argentina, Brazil, Canada, China, South Africa and the U.S.), four crops (maize, soybean, canola/rapeseed and cotton) and two traits (insect resistance and herbicide tolerance) accounted for 99% of the global area planted in transgenic crops in 2003, the report said. One of the key constraints many developing countries are facing in adopting and adapting biotechnology innovations is their lack of agricultural research capacity particularly in plant and animal breeding, FAO said. In the few developing countries where transgenic crops have been introduced, small farmers have gained economically and the use of toxic agro-chemicals has been reduced, FAO said. "Transgenic crops have delivered large economic benefits to farmers in some areas of the world over the past seven years." In several cases, per hectare gains have been large when compared with almost any other technological innovation introduced over the past few decades. The scientific evidence concerning the environmental and health impacts of genetic engineering is still emerging, the report said. "Scientists generally agree that the transgenic crops currently being grown and the foods derived from them are safe to eat, although little is known about their long-term effects," said FAO Director-General Jacques Diouf. "There is less scientific agreement on the environmental impacts of transgenic crops. The legitimate concerns for the safety of each transgenic product must be addressed prior to its release. Careful monitoring of the post-release effects of these products is essential." The FAO recommends a case-by-case evaluation that considers the potential benefits and risks of individual transgenic crops. The report noted that, while some benefits have been observed, adverse environmental effects have not been detected in commercial production. Continued monitoring is needed, FAO stressed.
  • The United Nations (U.N.) Convention on International Trade in Endangered Species (CITES) said it has received over 50 requests from 166 member countries for adjustments to rules governing various wildlife species. Namibia, for example, is seeking an exception to the ban on ivory that would authorize it to export 2 metric tons annually, and to trade elephant leather commercially. South Africa has also asked permission to trade elephant leather. Japan is requesting that three populations of minke whale be classified in a category that would tolerate export of a species without a permit. Australia and Madagascar are seeking approval for trading in great white shark.
  • Seychelles said it would not pursue plans to build a luxury resort at Aldabra, the largest raised coral atoll in the world.
  • A conference was held in Columbia to discuss deforestation due to armed conflict, which is said to have affected over 39 million hectares of forest.
  • China said it would establish sanctuaries for the South China tiger in Hunan and Jiangxi provinces. Wildlife groups said the action might be too little, too late. Fewer than 30 South China tigers now live in the wild, compared to over 4,000 around four decades ago.
  • The environmental group WWF issued a report, The Barents Sea Cod--The Last of the Large Cod Stocks. WWF found that global cod catch has suffered a 70% drop over the last 30 years, and if this trend continues, the world’s cod stocks will disappear in 15 years. The report contends that the world's largest remaining cod stock, in the Barents Sea, is now highly threatened by overfishing, illegal fishing and industrial development. Norway intends to reopen oil exploration and Russia has plans to increase shipping.
  • The U.N. Economic Commission for Europe met to discuss alleged violations of the Aarhus Convention by Kazakhstan, Ukraine, Hungary and Turkmenistan.
  • The World Bank approved the largest environmental grant in its history, giving an International Development Association Development Grant of $40 million and a Global Environment Facility Trust Fund Grant of $9 million to facilitate implementation of Madagascar's National Environment Action Plan. The plan aims at expanding protected habitats, establishing conservation sites in natural forests, and transferring forest management tasks to communities. "The project aims at ensuring that the long-term management of Madagascar's unique natural habitats and biodiversity resources are set on a more sustainable footing," said Martien van Nieuwkoop of the World Bank. "Biodiversity conservation efforts are essential in unleashing the significantly high revenue-generating potential of the eco-tourism sector in Madagascar."
  • The European Commission ended a five-year ban on genetically modified foods by agreeing to imports of Bt-11, a modified corn marketed by the Swiss firm Syngenta. The European Union is currently evaluating 33 applications for the breeding or cultivation of genetically modified crops.

CLIMATE CHANGE:

  • Reports that the European Union (EU) and Russia are nearing a breakthrough in talks regarding Russia's entry into the World Trade Organization (WTO) are increasing hopes that Russia will ratify the Kyoto Protocol. EU Trade Commissioner Pascal Lamy and German Gref, Russia's acting minister for the economy, issued a joint statement saying that substantial progress had been made. Russian officials have occasionally linked Kyoto with WTO membership. Following a high-level meeting in Moscow, Russia is expected to prepare a report, but some have said it is premature to assume that President Vladimir Putin will issue a public statement of Russia's intention to ratify. "A public statement will only come once the final decision has been taken," said Alexey Kokorin of WWF. But he noted that the government's draft report "is very pro-Kyoto," as is a report being prepared by the Ministry of Foreign Affairs.
  • Members of the Russian Academy of Sciences urged President Putin to reject the Protocol, saying that "its effectiveness in reducing the concentration of greenhouse gases in line with the [U.N.] Framework Convention on Climate Change is low." The scientists argued that "if Russia ratifies the Kyoto Protocol, it would have to either reduce its economic growth or buy additional quotas on greenhouse emissions." Russia accounts for 17.4% of global carbon dioxide emissions.
  • The U.K. government lowered carbon dioxide emission reduction targets, pleasing industry alliances and angering environmental groups. The government's plan now seeks a 15.2% reduction between 1990 and 2010. An earlier draft plan set the target at 16.3% between 1990 and 2010.
  • The European Commission has set in motion the filing of infringement proceedings against six "old" EU states (Spain, Portugal, Italy, France, Belgium, and Greece) for not submitting greenhouse gas emission reduction plans by the March 31 deadline. See http://www.euobserver.com/?aid=16147&printer=1

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

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