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Weekly Update Volume 34, Issue 17

06/21/2004

 LITIGATION

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

NEPA, CAA, FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION (FMCSA):

The U.S. Supreme Court held that the FMCSA did not violate NEPA, relevant CEQ regulations, or the CAA when it failed to evaluate the environmental impact of increased cross-border operations of Mexican motor carriers in its EA because any environmental impact would be the effect of lifting a 19-year moratorium against Mexican motor carriers from operating within the United States, not of the regulations’ implementation. The issue was whether increased cross-border operations of Mexican motor carriers and correlative release of emissions was an effect of the FMCSA's rules and, if not, then the FMCSA 's failure to address environmental effects in the EA was proper. The Court also held that the group forfeited any objection to the EA on the ground that it did not adequately discuss potential alternatives to the proposed action because respondents never identified in their comments to the rules any alternatives beyond those the EA evaluated. Finally, the FMCSA's purpose is to register any motor carrier willing and able to comply with various safety and financial responsibility rules. Thus, since the FMCSA has no ability to prevent such cross-border operations, it lacks the power to act on whatever information might be contained in an EIS and could not act on whatever input the public could provide. The FMCSA did not violate the CAA by failing to make a conformity determination which considered direct and indirect emissions in a nonattainment or maintenance area. Trucks' emissions were not direct because they will not occur at the same time or place as the promulgation of the regulations nor were they considered indirect because the FMCSA cannot practicably control or maintain control over the emissions: the FMCSA has no ability to countermand the president's decision to lift the moratorium or to act categorically to prevent Mexican carriers from registering and Mexican trucks from entering the country; and once the regulations are promulgated, the FMCSA will not be able to regulate any aspect of vehicle exhaust from those trucks. Although the lower court held that the EA was deficient because it failed to give adequate consideration to the overall environmental impact of lifting the moratorium, the Court rejected an environmental group's challenge to the procedures used in promulgating these regulations and remanded the case for further proceedings. Thomas, J., delivered the opinion for a unanimous Court.Department of Transportation v. Public Citizen, No. 03-358 (U.S. June 7, 2004) (23 pp.).

CWA, STORMWATER:

The U.S. Supreme Court denied petition for writ of certiorari to a municipality, which challenged new regulations aimed at reducing stormwater pollution. The new regulations constitute the final Phase II rule under a 1987 amendment to the CWA. Phase I of the CWA amendment covers industrial stormwater, large construction sites, and metropolitan areas with populations greater than 100,000. Phase II CWA stormwater regulations apply to cities with populations below 100,000 and construction sites between 1 and 5 acres.Texas Cities Coalition on Stormwater v. Environmental Protection AgencyNo. 03-1125 (U.S. June 7, 2004) (1 p.).

FLPMA, APA, NEPA, OFF-ROAD VEHICLES (ORVs):

The U.S. Supreme Court held that an environmental group could not sue the BLM under APA §706(1) for failure to act to protect public lands from environmental damage caused by ORVs because although FLPMA §1782(c) is mandatory as to the object to be achieved, it leaves the BLM discretion to decide how to achieve that object, thereby limiting pervasive federal court oversight of agency decisionmaking. The BLM did not fail to comply with its land use plans since the plan is not a legally binding commitment enforceable under APA §706(1) but instead is a series of guidelines. Finally, the BLM did not fail to take a "hard look" at whether to supplement its EIS to take increased ORV use into account since the BLM had already approved its land use plan and thus there is no ongoing major federal action that could require supplementation. Scalia, J., delivered the opinion for a unanimous Court.Norton v. Southern Utah Wilderness Alliance, No. 03-101 (U.S. June 14, 2004) (20 pp.).

STANDING:

The U.S. Supreme Court cited a number of environmental cases in reaching its decision in a case involving a challenge to the legality of the Pledge of Allegiance that federal courts may not entertain claims by a plaintiff lacking standing to sue when the lawsuit may have an adverse effect on the person who is the source of the claimed standing. The Court relied onLujan v. Defenders of Wildlife,504 U.S. 555 (1992), which held that environmental organizations did not established an injury sufficient to confer standing to challenge the inapplicability of the interagency consultation requirements in §7(a)(2) of the Endangered Species Act to federal actions taken abroad. The Court also relied onColorado River Water Conservation District v. United States, 424 U.S. 800 (1976), for the proposition that courts must balance the heavy obligation to exercise jurisdiction against the deeply rooted commitment not to pass on questions of constitutionality unless adjudication of the constitutional issue is necessary. Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Rehnquist, C.J., filed an opinion concurring in the judgment in which O'Connor, J., and Thomas, J., filed opinions concurring in the judgment. Scalia, J., took no part in the consideration or decision of the case.Elk Grove Unified School District v. Newdow, No. 02-1624 (U.S. June 14, 2004) (57 pp.).

CWA, MAINTENANCE EXCEPTION, RCRA:

The Second Circuit determined a town's action to deposit fill into a gully to prevent road collapse did not require a CWA permit because it fell under §1344's maintenance exception. Both CWA and RCRA claims were barred because the discharge was completed before suit was filed and could not constitute an ongoing violation, and the resident failed to allege ongoing dumping of solid waste as required to prove RCRA violations under §4005.June v. Town of Westfield, No. 03-7723 (2d Cir. June 2, 2004) (10 pp.).

CIVIL PROCEDURE, SDWA:

The Ninth Circuit affirmed a lower court's denial of a judgment creditor's motion to intervene under Rule 24(a) of the Federal Rules of Civil Procedure in an environmental enforcement action that may impair the creditor's ability to collect a debt if the debt is not sufficiently related to the enforcement action. The creditor's interest in the prospective collectability of the debt (judgment for breach of contract) was not sufficiently related to the enforcement action, the creditor could still seek enforcement of the lien through other means despite being denied intervention, and the motion, filed four years into the proceedings, was untimely.United States v. Alisal Water Corp., No. 02-16594 (9th Cir. June 3, 2004) (15 pp.).

OIL SPILL, RES JUDICATA:

The Eleventh Circuit reversed a lower court decision to hold that an oil spill cleanup settlement agreement did not preclude future suits based on nonoil contaminants. Although an earlier settlement agreement between a landowner/lessor and polluter/lessee for oil spill cleanup did not expressly allow for future contamination claims to be brought, to preclude a wider range of matters than those specified in the agreement would frustrate the parties' expressed intent and bestow upon the polluter/lessee a windfall of immunity from litigation. Where the parties stipulate to have a case dismissed, a modified version of res judicata applies to a settlement agreement upon which dismissal is predicated. Since the settlement agreement did not preclude future suits based on nonoil contaminants or based on contamination of other areas that did not stem from contamination of the leased site, the landowner's/lessor's suit may proceed.Norfolk Southern Corp. v. Chevron, U.S.A., Inc.No. 03-14473 (11th Cir. June 3, 2004) (12 pp.).

CAA, CITIZENS SUITS:

The Second Circuit held that CAA §304(a)(3) allows citizens to challenge a state determination that a prospective source of air pollution was not a major emitting facility and to bring suit to enjoin construction of the facility. The existence of potentially overlapping enforcement mechanisms does not demonstrate Congress' intention to preclude a citizen suit. The factory must be considered a major emitting facility under the CAA because the mechanisms put in place to limit pollution are neither practically effective nor enforceable, and thus the minor source permit was insufficient. Moreover, the facility would be located in a nonattainment area for several of the pollutants that will be emitted by the facility, and thus the facility must comply with CAA Part D permit requirements. Weiler v. Chatham Forest Products, Inc., No. 02-9500 (2d Cir. June 4, 2004) (16 pp.).

TAKINGS, MINING:

The Fifth Circuit held that an ordinance constituted a categorical taking by depriving a mining company of its property interests, the right to mine limestone, and remanded the issue of whether mining constituted a public nuisance under Texas law. The court held that an ordinance prohibiting a specific company from mining activities within city limits was a land use regulation. Since the relevant parcel fell within city limits, the mining company's leasehold interests were rendered valueless, thereby constituting a taking without just compensation.Vulcan Materials Co. v. City of TehuacanaNo. 02-51182 (5th Cir. June 4, 2004) (29 pp.).

FIFRA, LABELING:

The Eleventh Circuit held that FIFRA §136v(b) preempts state-law claims in personal injury actions caused by pesticides to the extent that the claims are based on inadequate labeling or packaging. Upon properly using a pesticide, plaintiff suffered a reaction and was hospitalized, and sued for inadequate labeling in negligence and strict liability. The court held that FIFRA expressly preempts state common-law actions against manufacturers of EPA-registered pesticides when predicated on claims of inadequate labeling.Oken v. Monsanto Co., No. 02-15943 (11th Cir. June 4, 2004) (10 pp.).

NATIVE AMERICANS, WHALE HUNTING, MARINE MAMMAL PROTECTION ACT (MMPA), NEPA:

The Ninth Circuit amended its December 20, 2002 opinion and denied renewed petitions for rehearing en banc on the issue that the federal government violated NEPA by failing to complete an EIS before approving a Native American tribe's resumption of whale hunting and that neither the permit nor waiver requirements of the MMPA were satisfied. The amendment includes the addition of a footnote on page 844 in Part IV after the sentence that ends "they must do so before any taking of a marine mammal."Anderson v. Evans, No. 02-35761 (9th Cir. June 7, 2004) (49 pp.).

CERCLA, RCRA:

The Fourth Circuit held that, in a superfund case, RCRA's §6924(t)(2) direct action provision may not be utilized to pursue CERCLA claims for cost recovery and contribution against PRPs. The plain language and congressional intent of RCRA establishes that the statute applies only to claims concerning present and future threats to human health and environment, and the state's reliance on RCRA is an effort to circumvent CERCLA's more specific direct action provision. As to the restitution claim, the state failed to establish privity with the insurers, the state legislature had not provided statutory authorization for a direct action, and because RCRA does not authorize cost recovery for past cleanup costs, a cause of action for restitution cannot be maintained directly against the insurers. Finally, the state's claim seeking judicial declaration that each insurer is obliged to pay for all damages, losses and costs the state may incur with respect to future environmental remediation at the facility was properly dismissed because the original facility operator was not a party, so any rights from its insurance policies would be indeterminable. The court expressed concern over the piecemeal nature of the litigation and over potential adverse impacts on judicial economy of retaining jurisdiction over the judicial declaration count.South Carolina Department of Health & Environmental Control v. Commerce & Insurance Industry Co., No. 03-1329 (4th Cir. June 8, 2004) (22 pp.).

CAA, FOIA, DELIBERATIVE-PROCESS PRIVILEGE:

The Seventh Circuit affirmed a lower court decision to deny production of EPA documents related to the potential toxicity of an ozone-depleting substance (ODS) and EPA's evaluation of that toxicity under FOIA because the deliberative-process privilege applied to the requested documents. EPA documented its internal dialogue and policy formulation of acceptable ODS substitutes before publicly releasing the proposed rule establishing a recommended workplace exposure limit. The court denied the company's argument that EPA lacked authority to propose an ODS workplace exposure limit and, as a result, the deliberations that culminated in the agency's proposal of such a limit are beyond the scope of the deliberative process privilege.Enviro Tech International, Inc. v. U.S. Environmental Protection Agency, No. 03-2215 (7th Cir. June 10, 2004) (12 pp.).

NEPA, RIPENESS, ELEVENTH AMENDMENT:

The D.C. Circuit held an environmental group's claim that EPA violated NEPA by failing to review the environmental impact of a municipal sewer project is not ripe for review because EPA is currently conducting its review and there has been no final agency action. EPA has not shown substantial control over a state grant of funds for the project and thus has not acted arbitrarily and capriciously in approving the state program for disbursing its state revolving funds. The Eleventh Amendment precludes jurisdiction since the environmental group sued the state agencies directly instead of suing individual state officers, and there is no indication of waiver of sovereign immunity. Finally, nonfederal participants in federal actions need not themselves comply with NEPA; although the municipality arguably jeopardized its federal funding by proceeding with construction before EPA reached a decision on the grant request, nothing in NEPA prevents the municipality from taking that risk.Citizens Alert Regarding the Environment v. Environmental Protection Agency, No. 03-5159 (unpublished, D.C.Cir. June 15, 2004).

OSAGE ALLOTMENT ACT (OAA):

The Tenth Circuit held that the OAA §2 does not require a landowner to exhaust his administrative remedies before suing oil companies and federal agencies for waste water leaks from oil production under CERCLA, CWA, the Oil Pollution Act, and the Federal Tort Claim Act as well as common law nuisance and negligence claims. Although OAA §2 requires claims of surface land damages from oil and gas mining operations arising under this section must be submitted to arbitration, the landowner's claims did not arise under §2.Quarles v. United States, No. 03-5035 (10th Cir. June 16, 2004) (8 pp.).

CAA, NESHAPs:

The D.C. Circuit held that EPA failed to properly set emission limits on hazardous air pollutants (HAPs) emitted in polyvinyl chloride (PVC) production other than vinyl chloride by use of a surrogate and remanded to EPA for a more adequate explanation its methodology for regulating HAPs. An environmental group's claims that EPA erred in setting the floor for exhaust gasses and failed to establish beyond-the-floor standards per CAA §112(d)(2) were waived because they were not raised before EPA. EPA's identification of the five best performing PVC plants in setting the residual vinyl chloride monomer floor was reasonable and supported with data showing the connection between its maximum achievable control technology floor and those plants.Mossville Environmental Action Now v. Environmental Protection Agency, No. 02-1282 (D.C. Cir. June 18, 2004) (17 pp.).

CWA, NPDES, ADMINISTRATIVE WARRANT:

A district court denied a shopping center's motion to quash an administrative warrant obtained by EPA to inspect the premises for possible NPDES permit violations under CWA §308 since the warrant had already been executed and the inspection was completed when the motion to quash was filed, rendering the motion moot. CWA §308 gives EPA the right to inspect construction activities, which cause unpermitted discharges for the life of the permit, not just until the permit expiration date. The warrant was properly issued since unfinished construction long after the completion date, storm water damage, and a basin which failed to comply with the erosion and sediment control plan, provided probable cause. Ex parte proceedings were proper because it was not required to provide notice to the shopping center, which would enable a potential violator to temporarily stop its prohibited activities only to restart such conduct after the inspection and severely hinder EPA's enforcement abilities.In re Search Warrant, No. 04-00079-MPT (Thynge, Magistrate J.) (D.Del. June 9, 2004) (11 pp.).

APA, EQUAL ACCESS TO JUSTICE ACT (EAJA), ATTORNEYS FEES:

A district court awarded attorneys fees and costs to a nonprofit environmental group for its successful claim against EPA for violating the APA by approving West Virginia's water quality standard for 3-methyl-4- chlorophenol without proper review. Since the nonprofit did not prevail on CWA claims but rather on APA claims, the applicable fee-shifting statute is the EAJA, 28 U.S.C. §2412. The court concluded that the hours spent on the APA litigation and the separate fee petition were in a reasonable and responsible manner under the lodestar method. Attorneys fees were denied for hours spent on CWA claims and on replying to EPA's motion for summary judgment, which did not implicate the successful claim.West Virginia Rivers Coalition v. U.S. Environmental Protection Agency, No. Civ.A. 03-1022 (Bartle, J.) (unpublished, E.D. Pa. June 11, 2004) (6 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 amended certain regulations to reflect the delegation of NESHAPs to Nevada that occurred on January 12, 2004.69 FR 31742(6/07/04).
  • EPA granted a deferral of the 8-hour ozone nonattainment designation for Clark County, Nevada; the deferral was based on additional information submitted by Nevada demonstrating that, due to the late finding of nonattainment in the State, it did not have sufficient time to recommend an appropriate boundary for the Las Vegas nonattainment area.69 FR 34080(6/18/04).
  • EPA granted a deferral of the nonattainment designation for Hamilton and Meigs Counties, Tennessee, and Catoosa County, Georgia, based on additional information submitted by this area.69 FR 34085(6/18/04).
  • EPA approved proposed revisions (68 FR 42653) to Georgia's gasoline marketing rule intended to address concerns over availability of an adequate gasoline supply in the state by delaying the marketing rule's April 1, 2003, compliance deadline for new gasoline sulfur requirements.69 FR 33862(6/17/04).
  • EPA approved minor adjustments to CAA regulations concerning the allowance system for hydrochlorofluorocarbon production, import, and export; the adjustments correct an error and are intended to ensure that the regulations comply with terms of the Montreal Protocol that govern trade of certain ozone-depleting substances (ODS).69 FR 34023(6/17/04).
  • FDA proposed to remove the essential-use designation for albuterol oral-pressurized metered-dose inhalers that contain ODS; the Administration tentatively determined that because two albuterol inhalers that do not use ODS currently are marketed and are satisfactory alternatives to inhalers that use ODS, the essential-use designation under the CAA is no longer warranted.69 FR 33602(6/16/04).
  • EPA denied a petition submitted under the CAA by the Alliance Against Waste and Action to Restore the Environment and the Louisiana Environmental Action Network that objected to a state operating permit issued by the Louisiana Department of Environmental Quality to Shintech Inc., a polyvinyl chloride plant in Addis, Louisiana.69 FR 33343(6/15/04).
  • EPA promulgated NESHAPs for stationary reciprocating internal combustion engines with site ratings of more than 500 brake horsepower because the Agency identified these engines as major sources of hazardous air pollutant emissions, including formaldehyde, acrolein, methanol, and acetaldehyde.69 FR 33463(6/15/04).

COASTAL ZONE:

  • The Puerto Rico Planning Board objected to the consistency certification of Villa Marine Yacht Harbor Inc. under the CZMA for purposes of obtaining a U.S. Army Corps of Engineers permit for marina expansion; on October 31, 2003, Villa Marine filed an administrative appeal with the Department of Commerce requesting that the Department's Secretary override the Board's objection to the certification and to the company's proposed expansion of an existing marina in Sardinera Bay, Sardinera Ward, Fajardo, Puerto Rico.69 FR 31965(6/08/04).

DRINKING WATER:

  • EPA tentatively approved revisions to South Carolina's public water system supervision program that adopt drinking water regulations for the radionuclide, arsenic, and "long term 1" enhanced surface water treatment rules.69 FR 31998(6/08/04).

HAZARDOUS AND SOLID WASTES:

  • EPA entered into two proposed administrative settlements under CERCLA concerning the Lockwood Corporation and Agromac International Inc. Superfund site in Gering, Nebraska.69 FR 32351(6/09/04).
  • EPA entered into a proposed administrative settlement under CERCLA concerning the Portland Cement Superfund site, Site 5, in Davis County, Utah; the present owners of the site and site trustees must pay $75,000 within 30 days of the settlement's effective data and pay a percentage of the net sale proceeds of any sale of the site.69 FR 31997(6/08/04).
  • EPA codified its September 1998 approval of Virginia's underground storage tank program under RCRA and incorporated by reference appropriate provisions of state statutes and regulations that will be subject to EPA's inspection and enforcement authorities under the Act. 69 FR 33312(6/15/04).
  • EPA codified its September 1997 approval of West Virginia's underground storage tank program under RCRA and incorporated by reference appropriate provisions of state statutes and regulations that will be subject to EPA's inception and enforcement authorities under the Act.69 FR 33309(6/15/04).

INTERNATIONAL:

  • The Department of State announced the availability of and requested comment on an application by Express Pipeline LLC for a presidential permit (pursuant to Executive Order 13337 of April 30, 2004) to operate and maintain the company's existing crude oil transport system that crosses the U.S.-Canada border near Port of Wild Horse, Alberta, crosses Montana, and ends in Casper, Wyoming; the application also requests authorization to construct, connect, operate, and maintain six additional pump stations alongside and connected to the existing system.69 FR 33691(6/16/04).

NATURAL RESOURCES:

  • USDA's Natural Resources Conservation Service in Michigan proposed to revise conservation practice standards in the state's field office technical guide that concern upland wildlife habitat management; wetland creation, enhancement, and restoration; restoration and management of declining habitats; invasive plant species control in natural habitats; forest harvest trails and landings; alley cropping; and herbaceous wind barriers.69 FR 32974(6/14/04).

NEPA:

  • The FAA revised procedures for implementing NEPA to advance the Administration's efforts, begun in January 2001, to streamline NEPA processes; the revisions include consolidating FAA categorical exclusions and adding new and modified exclusions; incorporating new procedures for preparing environmental documents; and consolidating appendices describing procedures for each program office and adding new appendices, such as those describing third-party contracting policies.69 FR 33777(6/16/04).
  • The Department of Homeland Security's Environmental Planning Program requested public comment on a draft internal management directive that specifies policies and procedures proposed for the Department's implementation of NEPA and associate procedural regulations and executive orders.69 FR 33043(6/14/04).

SMCRA PROGRAM:

  • OSM approved an amendment to Maryland's regulatory program under SMCRA that establishes time periods within which the Maryland Department of the Environment must take action on permit applications and revisions and revised applications.69 FR 33848(6/17/04).
  • OSM removed a required program amendment from West Virginia's regulatory program under SMCRA that concerned tree stocking standards for mountaintop removal mining operations with variances from the requirement to restore their sites to approximate original contour following mining and authorized for commercial forestry or forestry post-mining land uses.69 FR 33851(6/17/04).

TOXIC SUBSTANCES:

  • EPA announced the availability of the 54th report of the TSCA Interagency Testing Committee, submitted to the Agency in late April; in the report, the committee revised the priority testing list authorized by the Act by removing 25 vanadium compounds, and requested public comment on the advisability of posting on the committee's website broad, non-confidential business information categories of worker numbers and hours created by TSCA §8(a) preliminary assessment information reporting rule submissions.69 FR 33572(6/15/04).

WATER QUALITY:

  • EPA entered into a proposed settlement agreement under the CWA with respondents who allegedly violated the Act by discharging fill material into the San Pedro River in Conchise County, Arizona; the respondents must pay a $5,500 penalty.69 FR 33903(6/17/04).
  • EPA proposed to extend by 12 months certain compliance dates for facilities required by amendments finalized in July 2002 to update their CWA spill prevention control and countermeasure plans; this proposed extension follows the recent partial settlement inAmerican Petroleum Institute v. Leavitt, No. 1:102CV02247 PLF (D.D.C. Nov. 14, 2002) and is intended to give members of the regulated community sufficient time to update (or prepare) their plans for oil pollution prevention and response associated with non-transportation-related on-shore and off-shore facilities.69 FR 34013(6/17/04).
  • The U.S. Coast Guard finalized regulations for vessels with ballast water tanks bound for ports or places in the United States; the regulations establish penalties for vessels that fail to submit ballast water management reports and for vessels bound for the Great Lakes or portions of the Hudson River that violate mandatory reporting requirements, and also expand reporting and recordkeeping requirements.69 FR 32864(6/14/04).

WETLANDS:

  • DOT's Federal Highway Administration, New York Division Office, announced and requested public comment on a revised programmatic wetland finding concerning federally aided highway projects classified as categorical exclusions and sanctioned by U.S. Army Corps of Engineers §404 permits (excluding those projects that require a Nationwide Permit 23), and/or certain projects classified as categorical exclusions and which affect isolated wetlands; the revision satisfies requirements of Executive Order 11990 and DOT Order 5660 and means that that no individual wetland finding will be required for the referenced projects.69 FR 32398(6/09/04).

WILDLIFE:

  • FWS proposed to supplement a previously proposed rule to establish annual hunting regulations for certain migratory game birds for the 2004–2005 hunting season; the proposed supplement provides a regulatory schedule, announces meetings for the Service's Migratory Bird Regulations Committee and Flyway Council, provides the recommendations the council developed at its March meetings, and provides regulatory alternatives for the 2004–2005 duck hunting season.69 FR 32417(6/09/04).
  • NOAA advised the public that the Nez Perce Indian Tribe submitted a tribal resource management plan to NMFS pursuant to the limitation on take prohibitions for actions conducted under the management plan, which specified the management of recreational, ceremonial, and subsistence fisheries in 2004, promulgated under ESA.69 FR 34135(6/18/04).
  • NMFS conducted a status review, following receipt of a petition to list the North American green sturgeon as threatened or endangered under ESA, and determined that the petitioned species is comprised of two distinct population segments (DPSs) that qualify as species under ESA; neither DPS warranted listing as a threatened or endangered species but that the green sturgeon should be defined as candidate species.69 FR 34136(6/18/04).
  • FWS and NMFS announced the availability for public review of the draft recovery plan for the Gulf of Maine DPS of Atlantic Salmon; FWS and NMFS are soliciting review and comment on the draft plan from the public and all interested parties.69 FR 34185(6/18/04).
  • FWS announced the availability of a draft comprehensive conservation plan for the Detroit River International Wildlife Refuge in Wayne and Monroe Counties, Michigan; the plan, prepared pursuant to the National Wildlife Refuge System Administration Act of 1996, as amended, and NEPA, describes how the Service plans to manage the refuge over the next 15 years.69 FR 33651(6/16/04).
  • FWS and USDA's Forest Service announced seasonal adjustments to fishing schedules and closures intended to protect sockeye salmon in Alaska's Copper River while still allowing for subsistence harvest. The adjustments provide exceptions to the subsistence management regulations for public lands in Alaska published in theFederal Registeron February 3, 2004.69 FR 33307(6/15/04).
  • NOAA's National Marine Fisheries Service (NMFS) issued a temporary, 30-day emergency rule prohibiting shrimp trawlers in offshore Atlantic waters approximately west of Cape Fear, North Carolina, and north of St. Augustine, Florida, from fishing at night between 9 p.m. and 5 a.m. eastern daylight time, after finding that recent, unusually high increases in shrimp trawling in the area, particularly at night, are causing high rates of mortality and strandings of sea turtles considered endangered or threatened under the ESA.69 FR 32898(6/14/04).
  • NMFS proposed to list 4 evolutionarily significant units of West Coast salmon and steelhead species as endangered and 23 as threatened under the ESA, and proposed to amend existing regulations under the ESA for the affected units; the 27 units collectively include 162 artificial salmon propagation programs.69 FR 33101(6/14/04).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Brian Chuchua, No. 3:01CV1479 DMS (AJB) (S.D. Cal. May 28, 2004). A settling CWA defendant who discharged pollutants without a permit into U.S. waters must pay a civil penalty; this partial consent decree does not address the complaint against two other defendants associated with the suit.69 FR 32369(6/09/04).
  • United States v. City and County of Denver, No. No. 04-N-1031 (MJW) (D. Colo. May 20, 2004). Settling CERCLA defendants that failed to ensure that the remedy required by EPA for the Lowry Landfill Superfund site in Denver, Colorado, complied with relevant landfill gas performance standards, and failed to report incidents wherein the standards were exceeded and take prompt action to prevent, abate, or minimize volatile organic compounds in the subsurface environment of the landfill gas compliance boundary, must pay the United States $265,000 within 30 days of the settlement's effective date.69 FR 32369(6/09/04).
  • United States v. Equistar Chemicals, LP, No. 04-1172 (W.D. La. May 28, 2004). A settling defendant that violated the CAA and associated regulations at the Equistar Chemicals, LP facility in Sulphur, Calcasieu Parish, Louisiana, must, upon re-opening the facility, conduct performance tests of two flares to demonstrate compliance with the parameters given in 40 CFR 60.18(f)(1) through 60.18(f)(6); submit to EPA and the state within 180 days a report containing the flare test results; pay a civil penalty of $100,000; and, as a supplemental environmental project, spend at least $95,000 to replace two older school buses in the parish with two new school buses that will emit less pollution.69 FR 32369(6/09/04).
  • United States v. FMC Corporation, No. 01-0476(KSH) (D.N.J. May 25, 2004). A settling CERCLA defendant must design, construct, and operate an on-site groundwater extraction and reinjection system for the Higgins Disposal Superfund site in Kingston, New Jersey; this partial consent decree preserves the United States' claims for past and future response costs associated with the site.69 FR 32370(6/09/04).
  • United States v. J & L Specialist Steel Company, LLC, No. No. 04-807 (W.D. Pa. May 28, 2004). A settling defendant that violated the CWA and the national pollutant discharge elimination system permit issued to the J & L steelmaking facility in Midland, Pennsylvania, by discharging pollutants into U.S waters in excess of amounts allowed by the permit and by failing to comply with CWA spill prevention and control countermeasures, and that also allegedly violated the Pennsylvania Clean Streams Law, must pay civil penalties of $50,000 to the United States and $50,000 to Pennsylvania.69 FR 32370(6/09/04).
  • United States v. Ketchikan Pulp Company, No. A04-0104 CV (JKS) (D. Ala. May 20, 2004). A settling CERCLA defendant must complete petroleum cleanup work, pursuant to CERCLA administrative orders previously issued by the USDA Forest Service, at three sites in Alaska's Tongass National Forest where the Ketchikan Pulp Company previously conducted logging and associated operations under a long-term timber sale contract with the Forest Service; perform additional removal action at a fourth site; agree to pay 50% of any future response costs incurred at the Thorne Bay Landfills site as a result of new information or currently unknown conditions; and enter in a reciprocal covenant not to sue for response and removal costs associated with 23 other former logging facilities and the Connell Dam site, subject to a "reopener" clause for unknown conditions or new information indicating the response actions are not sufficiently protective of human health and the environment.69 FR 32371(6/09/04).
  • In re Philip Services Corporation, No. 03-37718-H2-11 (S.D. Tex. May 28, 2004). A settling CERCLA defendant involved in bankruptcy proceedings must allow EPA a bankruptcy claim totaling $16,738,601 to resolve the defendant's liability concerning six hazardous waste sites: the Consolidated Iron site in Newburgh, New York; the Breslube-Penn site in Corapolis, Pennsylvania; the Spectron Site in Elkton, Maryland; the Modena Yard site in Chester County, Pennsylvania; the Malone Services site in Texas City, Texas; and the Casmalia site in Santa Barbara, California.69 FR 32371(6/09/04).
  • United States v. Atofina Chemicals, Inc., No. C04-5319-RBL (W.D. Wash. June 2, 2004). Settling defendants under CERCLA must perform injunctive relief (cleanup) at the Head of the Hylebos Waterway problem area of the Commencement Bay/Nearshore Tideflats Superfund site in Tacoma, Washington.69 FR 33939(6/17/04).

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

THE CONGRESS

CHAMBER ACTION:

  • H.R. 3378 (Marine Turtle Conservation Act of 2004), which would assist in the conservation of marine turtles and the nesting habitats of marine turtles in foreign countries, was passed by the Senate, clearing the measure for the President. 150 Cong. Rec. S7058 (daily ed. June 18, 2004).
  • H.R. 2055 (Public Law 89-366 Amendment), which would amend Public Law 89-366 to allow for an adjustment in the number of free roaming horses permitted in Cape Lookout National Seashore, was passed by the House. 150 Cong. Rec. H3877-78D603 (daily ed. June 14, 2004).
  • H.R. 4513 (Renewable Energy Project Siting Improvement Act of 2004),which would provide that in preparing an environmental assessment or environmental impact statement required under section 102 of the National Environmental Policy Act of 1969 with respect to any action authorizing a renewable energy project, no Federal agency is required to identify alternative project locations or actions other than the proposed action and the no action alternative, and for other purposes, was passed by the House.150 Cong. Rec. H3981-90, H4132-33 (daily ed. June 15, 2004).(Pombo Amendment), which would clarify that the environmental review processes in the bill, does not apply to oil and gas leasing activities, was agreed to by the House. 150 Cong. Rec. H3990 (daily ed. June 15, 2004).
  • H.R. 4503 (Energy Policy Act of 2004), which would enhance energy conservation and research and development, to provide for security and diversity in the energy supply for the American people, and for other purposes, was passed by the House.150 Cong. Rec. H3981-90, H4132-33 (daily ed. June 15, 2004).
  • H.R. 4517 (U.S. Refinery Revitalization Act of 2004), which would provide incentives to increase refinery capacity in the United States, was passed by the House. 150 Cong. Rec. H4178-91, H4206 (daily ed. June 16, 2004).
  • H.R. 4568 (Department of the Interior and Related Agencies Appropriations Act for Fiscal Year 2005), which would make appropriations for the Department of the Interior and related agencies for the fiscal year ending September 30, 2005, was passed by the House. H.Rep. No. H4435-65 (daily ed. June 17, 2004).(Hunter Amendment), which would prohibit the use of funds for the salaries and expenses of any employee for the expenditure of user fees for the costs of biological monitoring for a species that is included in a list published under the Endangered Species Act of 1973, or that is a candidate for inclusion in such a list, was agreed to by the House. 150 Cong. Rec. H4243-44 (daily ed. June 16, 2004).(Chabot Amendment), which would prohibit the use of funds to plan, design, study or construct forest development roads in Tongrass National Forest in Alaska for the purpose of harvesting timber by private entities or individuals, was agreed to by the House. 150 Cong. Rec. H4249-52, H4264-65 (daily ed. June 16, 2004).(Dicks Amendment), which would require that the Secretary of the Interior submit a report 30 days after the enactment of this act with a date certain of when and whether the public will have full access to the Statue of Liberty, including all areas that were closed after 9/11, was agreed to by the House. 150 Cong. Rec. H4458D640 (daily ed. June 17, 2004).

COMMITTEE ACTION:

  • H.R. 4545 (Gasoline Price Reduction Act of 2004), was reported by the Committee on Energy and Commerce. H.Rep. No. H4206-07, 150 Cong. Rec. H4133-39 (daily ed. June 15, 2004). The bill would amend the Clean Air Act to reduce the proliferation of boutique fuels, and for other purposes.
  • H.R. 4614 (Energy and Water Development Appropriations Act of 2005), was reported by the Committee on Appropriations. H. Rept. 108-554, 150 Cong. Rec. H4579 (daily ed. June 18, 2004). The bill would make appropriations for energy and water development for the fiscal year ending September 30, 2005, and for other purposes.
  • H.R. 3706 (John Muir National Historic Site Boundary Adjustment Act), was reported by the Committee on Resources. H. Rept. 108-555, 150 Cong. Rec. H4579 (daily ed. June 18, 2004). The bill would adjust the boundary of the John Muir National Historic Site, and for other purposes.

BILLS INTRODUCED:

  • S. 2508 (Domenici, R-N.M.) (water), would redesignate the Ridges Basin Reservoir, Colorado, as Lake Nighthorse. 150 Cong. Rec. S6499 (daily ed. June 7, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2509 (Hagel, R-Neb.) (water), would extend the water service contract for the Ainsworth Unit, Sandhills Division, Pick-Sloan Missouri Basin Program, Nebraska. 150 Cong. Rec. S6628 (daily ed. June 8, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2510 (Wyden, D-Or.) (hydrogen fuel credits), would amend the Internal Revenue Code of 1986 to allow a credit for the installation of hydrogen fueling stations and to exclude earnings from hydrogen fuel sales from gross income. 150 Cong. Rec. S6628 (daily ed. June 8, 2004). The bill was referred to the Committee on Finance.
  • S. 2511 (Domenici, R-N.M.) (water), would direct the Secretary of the Interior to conduct a feasibility study of a Chimayo water supply system, to provide for the planning, design, and construction of a water supply, reclamation, and filtration facility for Espanola, New Mexico, and for other purposes. 150 Cong. Rec. S6628 (daily ed. June 8, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2513 (Bingaman, D-N.M.) (water), would authorize the Secretary of the Interior to provide financial assistance to the Eastern New Mexico Rural Water Authority for the planning, design, and construction of the Eastern New Mexico Rural Water System, and for other purposes. 150 Cong. Rec. S6673 (daily ed. June 9, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2518 (Nelson, D-Neb.) (radioactive waste), would amend the Omnibus Low-Level Radioactive Waste Interstate Compact Consent Act to make the consent of Congress to certain compacts contingent on party states sharing the long-term liability for damages caused by radioactive releases from regional facilities. 150 Cong. Rec. S6803 (daily ed. June 15, 2004). The bill was referred to the Committee on the Judiciary.
  • S. 2532 (Ensign, R-Nev.) (wilderness areas), would establish wilderness areas, promote conservation, improve public land, and provide for the high quality development in Lincoln County, Nevada, and for other purposes. 150 Cong. Rec. S6881 (daily ed. June 16, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2547 (Voinovich, R-Ohio) (birds), would amend the Migratory Bird Treaty Act to exclude non-native migratory bird species from the application of that Act, and for other purposes. 150 Cong. Rec. S7054 (daily ed. June 18, 2004). The bill was referred to the Committee on Environment and Public Works.
  • H.R. 4545 (Blunt, R-Mo.) (air), would amend the Clean Air Act to reduce the proliferation of boutique fuels, and for other purposes. 150 Cong. Rec. H3962 (daily ed. June 14, 2004). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 4549 (Pombo, R-Cal.) (oil and gas), would provide for exploration, development, and production of oil and gas resources on the Arctic Coastal Plain of Alaska, to resolve outstanding issues relating to the Surface Mining Control and Reclamation Act of 1977, to benefit the coal miners of America, to make related technical changes, and for other purposes. 150 Cong. Rec. H3963 (daily ed. June 14, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4553 (Cunningham, R-Cal.) (recycling incentives), would amend the Internal Revenue Code of 1986 to provide tax incentives to encourage manufacturers of computer and television equipment to operate an environmentally sound recycling program for use by consumers who want to discard the equipment. 150 Cong. Rec. H3963 (daily ed. June 14, 2004). The bill was referred to the Committee on Ways and Means.
  • H.R. 4569 (Burns, R-Ga.) (tree disease), would provide for the development of a national plan for the control and management of Sudden Oak Death, a tree disease caused by the fungus-like pathogen Phytophthora ramorum, and for other purposes. 150 Cong. Rec. H4170 (daily ed. June 14, 2004). The bill was referred to the Committee on Agriculture.
  • H.R. 4576 (Goodlatte, R-Va.) (agriculture), would amend the Agricultural Marketing Act of 1946 to establish a voluntary program for the provision of country of origin information with respect to certain agricultural products, and for other purposes. 150 Cong. Rec. H4170 (daily ed. June 15, 2004). The bill was referred to the Committee on Agriculture.
  • H.R. 4577 (Grijalva, R-Ariz.) (land), would allow binding arbitration clauses to be included in all contracts affecting the land within the Gila River Indian Community Reservation.150 Cong. Rec. H4170 (daily ed. June 15, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4579 (McCarthy, D-Mo.) (land), would modify the boundary of the Harry S. Truman National Historic Site in the State of Missouri, and for other purposes. 150 Cong. Rec. H4170 (daily ed. June 15, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4580 (McKeon, R-Cal.) (water), would remove certain restrictions on the Mammoth Community Water District's ability to use certain property acquired by that District from the United States. 150 Cong. Rec. H4170 (daily ed. June 15, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4583 (Rehberg, R-Mont.) (agriculture), would amend the Farm Security and Rural Investment Act of 2002 to base the counter-cyclical payment rate for the 2003 crop year for producers whose farming operations are located in certain declared disaster areas on the total of the partial payments for that crop year. 150 Cong. Rec. H4171 (daily ed. June 15, 2004). The bill was referred to the Committee on Agriculture.
  • H.R. 4588 (Hinojosa, D-Tex.) (water), would amend the Lower Rio Grande Valley Water Resources Conservation and Improvement Act of 2000 to authorize additional projects and activities under that Act, and for other purposes. 150 Cong. Rec. H4286 (daily ed. June 16, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4593 (Gibbons, R-Nev.) (wilderness), would establish wilderness areas, promote conservation, improve public land, and provide for the high quality development in Lincoln County, Nevada, and for other purposes. 150 Cong. Rec. H4286 (daily ed. June 16, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4596 (Nethercutt, R-Wash.) (land), would amend Public Law 97-435 to extend the authorization for the Secretary of the Interior to release certain conditions contained in a patent concerning certain land conveyed by the United States to Eastern Washington University until December 31, 2009. 150 Cong. Rec. H4286 (daily ed. June 16, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4601 (Young, R-Alaska) (land), would amend that Alaska Native Claims Settlement Act to recognize Alexander Creek as Native village, and for other purposes. 150 Cong. Rec. H4286 (daily ed. June 16, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4602 (Young, R-Alaska) (land), would authorize the subdivision and dedication of restricted land owned by Alaska Natives. 150 Cong. Rec. H4286 (daily ed. June 16, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4603 (Filner, D-Cal.) (eminent domain), would amend the Internal Revenue Code of 1986 to provide for the nonrecognition of gain on real property held by individuals or small businesses which is involuntarily converted as the result of the exercise of eminent domain, without regard to whether such property is replaced. 150 Cong. Rec. H4506 (daily ed. June 17, 2004). The bill was referred to the Committee on Ways and Means.
  • H.R. 4606 (Baca, D-Cal.) (groundwater), 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. H4506 (daily ed. June 17, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4607 (Ehlers, R-Mich.) (NOAA), would establish the National Oceanic and Atmospheric Administration (NOAA), to amend the organization and functions of the NOAA Advisory Committee on Oceans and Atmosphere, and for other purposes. 150 Cong. Rec. H4506 (daily ed. June 17, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4623 (Udall, D-N.M.) (water), would authorize the Secretary of the Interior to provide financial assistance to the Eastern New Mexico Rural Water Authority for the planning, design, and construction of the Eastern New Mexico Rural Water System, and for other purposes. 150 Cong. Rec. H4580 (daily ed. June 18, 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 United Nations (U.N.), to mark the tenth anniversary of the Convention to Combat Desertification,saidthat an area the size of the state of Rhode Island is lost each year to desertification, and "it is estimated that 135 million people--the combined populations of France and Germany--are at risk of being displaced by desertification. The problem appears to be most severe in sub-Saharan Africa, the Sahel and the Horn of Africa. Some 60 million are estimated to eventually move from the desertified areas of sub-Saharan Africa towards Northern Africa and Europe by the year 2020." Africa could lose as much as two-thirds of its arable land by 2025, Asia one-third and South America one-fifth, according to the U.N.
  • Japan, in a document submitted to the World Trade Organization, acknowledged that fishing subsidies can lead to the depletion of stocks. But rather than endorsing a blanket ban on subsidies, Japan proposed a list of prohibited economic benefits or incentives. About 20%, or $15 billion per year, of the global fishing industry's revenue comes from subsidies.
  • WWF and the United Kingdom's Royal Society for the Protection of Birds published a study inProceedings of the National Academy of Sciences on fishing subsidies. It called for the establishment of marine protected areas (MPAs). According to the study, a network of MPAs covering 30% of the oceans would cost $12 billion to $14 billion per year, far less than the $15 billion to $30 billion spent annually on commercial fisheries.
  • A number of countries submitted approximately 50proposalsfor consideration at October's U.N. Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) meeting in Bangkok. Australia and Madagascar have proposed adding the great white shark to the CITES list. Fiji, the European Union and the United States want protection for the humphead wrasse, a reef fish found in the Indian and Pacific Oceans. Indonesia is proposing more stringent controls for ramin and agarwood trees. Japan wants trading bans on three populations of minke whales relaxed. Namibia and South Africa seek to trade elephant leather goods commercially.
  • The International Fund for Animal Welfaresaidthat whales are at considerable risk because Japan, Iceland and Norway have, for the first time in 15 years, deployed their fleets at the same time.
  • Greenpeace urged southeastern Asian nations to adopt the Basel Convention, pointing out that the area has become a "dumping ground" for "international waste traders due to the absence of a regional regulatory framework, coupled with weak national regulatory regimes."
  • The U.N. University released a report on risks from flooding. It concluded that as many as two billion people will be vulnerable to floods by 2050, twice as many as today. Seehttp://www.guardian.co.uk/climatechange/story/0,12374,1238020,00.html
  • At a meeting of the Pan African Sanctuaries Alliance (PASA) in Johannesburg, researchers said that only 8,000 of the most vulnerable chimpanzee subspecies, Pan troglodytes vellerosus, remain. The subspecies could become extinct within two decades, according to the PASA. "It is believed that the illegal hunting and eating of apes--known as the bushmeat crisis--has had the greatest impact on the rate of decline, along with deforestation, human encroachment and disease," PASA said in a statement. All chimpanzees are expected to become extinct in 41-53 years at current rates of decline.
  • Norway, in an effort to simulate an oil spill for emergency response training purposes, dumped 175 cubic feet of popcorn into a fjord.
  • The World Bank and the Global Environment Facility gave China $138 million inloansto improve water quality in the Pearl River delta.
  • The World Bank awarded Kyrgyzstan $8.9 million to assist in the cleanup of Soviet-era nuclear industry contamination.
  • China's State Forestry Administration said the number of pandas in the wild has significantly increased. Conservation groups were skeptical, saying that the numbers may simply reflect better reporting.
  • The Food and Agriculture Organizationsaidthat an increasing number of countries are implementing measures to comport with the 1975 Code of Conduct for Responsible Fisheries. "Many challenges remain, but sure and steady progress is being made in enlisting the international community in promoting more widespread adherence to the Code," said FAO Assistant Director General Ichiro Nomura, who heads the FAO fisheries department. "Much remains to be done in order to ensure that fisheries worldwide are being conducted in a responsible and sustainable manner, but the indications are that countries and private industry are both starting to respond to overexploitation and environmental concerns," he added. "This is particularly encouraging given that the Code is a voluntary instrument and I think reflects growing awareness that responsible fisheries not only have a key role to play in conservation, but that taking proper care of ocean environments can in fact help safeguard the future of the fishing sector," Nomura said.

CLIMATE CHANGE:

  • The journalNaturepublished a study on a two-mile-long ice core drilled from the Antarctic ice cap. The researchers conclude that present concentrations of greenhouse gases are among the highest, if not the highest, in history. "Today, we have levels of carbon dioxide that exceed by 30 percent the levels that we have ever had over the past 400,000 years," Swiss researcher Thomas Stocker said. "If the climate is left to its own devices, we have about another 15,000 years to go before the next ice age," British scientist Eric Wolff said. "If people say global warming is good because it stops us going into another ice age, they are wrong because we are not about to go into another ice age," he said.
  • 188 member countries of the U.N. Framework Convention on Climate Change met in Bonn to plan for a ministerial conference in December. Meanwhile, at a press conference in Washington, D.C., ten climate experts called for action. "By mid-century, millions more poor children around the world are likely to face displacement, malnourishment, disease and even starvation unless all countries take action now to slow global warming" and the attendant rising sea levels, Princeton University professor Michael Oppenheimer said. "Imagine the difficulties faced by families in Bangladesh. An area where about 8 million people now live would be underwater if global sea level were to rise half a meter. Where are they going to go?"
  • State of the Carbon Market 2004was released by the World Bank. It said that carbon trading is increasing dramatically but that developing countries will soon be unable to realize profits from trades. "Given the significant lead-time required for projects to get off the ground, the window to purchase meaningful quantities of emission reductions from developing countries and economies in transition will very likely close by 2006," the report said. Half of the current emission-reduction projects are in Asia. Almost none are in Africa.

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

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