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Weekly Update Volume 34, Issue 18

06/28/2004

LITIGATION

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

CAA, EMISSIONS, MARINE ENGINES:

The D.C. Circuit rejected a petitioner's challenge to an EPA rule adopting a two-tiered approach to setting emissions standards for "Category 3" marine diesel engines, which are "very large marine engines used primarily for propulsion power on ocean-going vessels such as container ships, tankers, bulk carriers, and cruise ships." The petitioner claimed that the rule fails to reduce emissions from those engines and entirely omits to regulate the emissions from foreign-flagged ships' engines, as required by CAA §213(a)(3). EPA's two-tiered approach, however, reasonably implements CAA §213(a)(3). Moreover, the petitioner's claim regarding EPA's deferment of whether to regulate Category 3 engines on foreign-flagged vessels is premature. The petition for review was therefore denied. Bluewater Network v. Environmental Protection Agency, No. 03-1120 (D.C. Cir. June 22, 2004) (14 pp.).

ESA, FORMAL CONSULTATION, MANDAMUS:

The D.C. Circuit granted a writ of mandamus compelling FERC to consult with the National Marine Fisheries Service (NMFS) regarding hydropower operations' impact on endangered fish in the Snake River basin. Mandamus is an extraordinary remedy reserved for extraordinary circumstances. Here, FERC's six-year delay in responding to environmental groups' petition to formally consult with the NMFS was clearly unreasonable. FERC's claims that it was not obligated to respond to the 1997 petition and that it could do no more were without merit, and it has in no way indicated that any practical impediments have prevented a response or that any "agency activities of a higher or competing priority" have required its attention.In re American Rivers, No. 03-1122 (D.C. Cir. June 22, 2004) (13 pp.).

FOREST MANAGEMENT, MANAGEMENT INDICATOR SPECIES (MIS):

The Tenth Circuit held that the U.S. Forest Service's authorization of the Monroe Mountain Ecosystem Restoration Project in the Fishlake National Forest was arbitrary and capricious. The Service failed to adequately monitor several management indicator species before approving the project in violation of its own regulations. The applicable regulations require the Service to gather quantitative data on actual MIS populations in order to estimate the effects of any forest management activities on the animal population trends, and to determine the relationship between management activities and population trend changes. Although the Service stated that it conducted annual monitoring for the presence, abundance, and nesting of the southwestern willow flycatcher, no quantitative data on the species appears in the record. Similarly, the record reflects no attempt by the Service to confirm the presence of the sage grouse MIS. And although hard quantitative data was collected on the three-toed woodpecker, quantitative data sufficient to determine population trends of the three-toed woodpecker was absent from the record. Utah Environmental Congress v. Bosworth, No. 03-4080 (10th Cir. June 23, 2004) (13 pp.).

DOT ACT, HISTORIC PROPERTIES, PRELIMINARY INJUNCTION:

The Tenth Circuit denied injunctive relief to individuals who challenged the Federal Highway Administration's (FHwA's) plan to reconstruct a 37.5-mile segment of Highway U.S. 70 in southeast New Mexico. The individuals claimed that the FHwA violated the DOT Act by failing to conduct the necessary reviews and investigations to determine whether the project will entail a "use" of historic properties protected under §4(f) prior to approving the project for construction. While the individuals may suffer some harm as a result of the denial of the injunction, the balance of harms and the public interest weigh in favor of the FHwA. In addition, the individuals failed to show a likelihood of success on the merits. The FHwA did not delay all necessary reviews until after the issuance of the final EIS and record of decision. Further, concerns raised in a letter from the Advisory Council on Historic Preservation did not alter the court's conclusion that the FHwA complied with §4(f). And the individuals failed to demonstrate that the FHwA's decision to apply a 150-foot area of potential effects was arbitrary and capricious or an abuse of discretion.Valley Community Preservation Commission v. Mineta, No. 03-2016 (10th Cir. June 23, 2004) (13 pp.).

FLOOD CONTROL ACT (FCA), ESA, NEPA:

A district court upheld the U.S. Army Corps of Engineers' 2004 Master Water Control Manual for the Missouri River and its reservoirs. The manual complies with the FCA. It properly gives the Corps discretion to vary its operations on the river in the event that changed circumstances require it to do so, and it does not conflict with South Dakota's consumptive beneficial uses. In addition, the FWS' 2003 biological opinion, which concluded that the Corps' proposed operations were justified even though they deviated from the reasonable and prudent alternatives in the 2000 biological opinion, was valid. Thus, the Corps' reliance on the 2003 biological opinion rather than the 2000 biological opinion was also valid, and it did not "take" any endangered or threatened species in violation of the ESA. Likewise, the 2004 annual operating plan and the record of decision do not violate the ESA. Nor was the manual arbitrary or capricious under NEPA.In re Operation of the Missouri River System Litigation, No. 03-MD-1555 (PAM) (D. Minn. June 21, 2004) (Magnuson, J.) (51 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 corrected a final rule (69 FR 23951) under the CAA issued on April 30, 2004, that established certain nationally applicable requirements for implementation of eight-hour ozone NAAQS; the original rule specified that petitions for review challenging the rule should be filed in the "appropriate circuit," but in the recent rule correction, the Agency clarified that petitions for review of any nationally applicable regulations under the CAA may be filed only in the United States Court of Appeals for the District of Columbia Circuit.69 FR 35529(6/25/04).
  • The National Center for Environmental Assessment announced the availability of and requested comment on three draft chapters of an EPA document,Air Quality Criteria for Particulate Matter, that assesses the latest scientific information on the effects of airborne particulate matter on public health and welfare and will inform the Agency's current review of the NAAQS for particulate matter.69 FR 35028(6/23/04).
  • EPA partially granted and partially denied each of three petitions by the New York Public Interest Research Group that objected to state operating permits issued under the CAA to three facilities in the state.69 FR 34301(6/21/04).

COASTAL ZONE:

  • NOAA's Office of Ocean and Coastal Resource Management announced plans to evaluate the extent to which South Carolina's coastal management program meets national objectives, adheres to the state's federally approved coastal management plan, and meets terms of financial assistance granted the state under the CZMA; the office also announced the availability of final evaluation findings for Oregon and New Hampshire's coastal management programs and the Chesapeake Bay-Maryland and Chesapeake Bay-Virginia National Estuarine Research Reserves.69 FR 34994(6/23/04).

ENFORCEMENT:

  • The U.S. Army Corps of Engineers adjusted the amounts of Class I civil penalties levied under the CWA and the National Fishing Enhancement Act; the adjustments were made to account for inflation and constitute 10% increases in both types of civil penalties.69 FR 35515(6/25/04).

GUIDANCE:

  • EPA requested public comment on a proposed policy guidance, "Guidance to Environmental Protection Agency Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons," intended to suggest a general framework that programs and activities receiving EPA assistance should use to provide meaningful access to persons with limited English proficiency.69 FR 35602(6/25/04).

HAZARDOUS AND SOLID WASTES:

  • EPA proposed to grant a petition by the General Motors Corporation's Lordstown Assembly Plant in Lordstown, Ohio, to exclude from the RCRA list of hazardous wastes up to 2,000 cubic yards of sludge per year generated at the facility's wastewater treatment plant; the Agency tentatively granted the petition after determining, based in waste-specific information provided by the corporation, that the waste at issue is non-hazardous with respect to RCRA listing criteria and no other factors exist that would cause the waste to be hazardous.69 FR 35554(6/25/04).
  • EPA announced the deletion from the NPL of a property, 475 South Jefferson Street in Orange, New Jersey, that is part of operable unit at the U.S. Radium Corporation Superfund site in Orange.69 FR 35256(6/24/04).
  • EPA entered into a proposed prospective purchaser agreement under CERCLA concerning the Denova Environmental Superfund site in Rialto, California; the purchaser, which plans to acquire the 20-acre site to use as part of a distribution center, must pay EPA $100,000 in cash.69 FR 34670(6/22/04).
  • EPA entered into a proposed administrative settlement under CERCLA concerning the Denova Environmental Superfund site in Rialto, California; six settling parties must pay EPA $640,000.69 FR 34671(6/22/04).

NATURAL RESOURCES:

  • USDA's Natural Resources Conservation Service (NRCS) and Commodity Credit Corporation (CCC) issued interim final regulations governing activities under the Conservation Security Program, a federal initiative that provides financial and technical assistance to agricultural producers who meet certain standards for the conservation and improvement in quality of soil, water, air, energy, and plant and animal life, and support other conservation activities.69 FR 34501(6/21/04).
  • USDA's NRCS and CCC announced that the first sign-up for the Conservation Security Program will be open from July 6, 2004, through July 30, 2004, for agricultural producers in certain priority 8-digit watersheds in 22 states.69 FR 34533(6/21/04).

PESTICIDES AND TOXIC SUBSTANCES:

  • EPA announced the availability of and requested comment on human health and environmental fate and effects risk assessments and related documents produced during the Agency's re-registration eligibility decision and tolerance reassessment process for Amitraz, a general-use pesticide registered for use on pears, cattle, hogs, and cotton.69 FR 35600(6/25/04).
  • EPA announced the availability of and requested comment on human health and environmental fate and effects risk assessments and related documents produced during the Agency's re-registration eligibility decision and tolerance reassessment process for 4-chloro-2-methylphenoxy acetic acid, a chemical used in agricultural herbicides.69 FR 35017(6/23/04).
  • EPA announced the availability of and requested comment on human health and environmental fate and effects risk assessments and related documents produced during the Agency's re-registration eligibility decision and tolerance reassessment process for the broad-spectrum herbicide 2, 4-dichlorophenoxyacetic acid, a chemical registered for use in controlling broadleaf weeds in various agricultural, forestry, aquatic, and turf applications.69 FR 35019(6/23/04).

WATER QUALITY:

  • EPA issued two general NPDES permits for small publicly owned treatment works treating domestic sewage in Alaska; one permit is applicable to facilities discharging pollutants to marine waters and one is applicable to facilities discharging to fresh waters.69 FR 34351(6/21/04).
  • EPA announced the availability of documents associated with the Agency's final action on total maximum daily load determinations for three waters in Arkansas (Grays Lake, Big Johnson Lake, and Monticello Lake) listed as impaired under CWA §303(d).69 FR 34352(6/21/04).

WILDLIFE:

  • FWS proposed to designate critical habitat for the Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River populations of bull trout, listed as threatened under the ESA in 1999; the Service proposed to designated more than 2,500 miles of streams, 58,700 acres of lakes, and 980 miles of marine shoreline in Idaho, Montana, Nevada, and Washington.69 FR 35767(6/25/04).
  • NOAA's National Marine Fisheries Service (NMFS) proposed to close a tuna purse seine fishery in the eastern tropical Pacific Ocean for a six-week period beginning August 1, 2004, and close a U.S. longline tuna fishery in the area if that operation's catch reaches 2001 levels; these actions would implement recommendations of the Inter-American Tropical Tuna Commission that have been approved by the Department of State under the Tuna Conventions Act.69 FR 35569(6/25/04).
  • NMFS announced that a petition to list elkhorn, staghorn, and fused-staghorn coral as endangered or threatened under the ESA and to designate critical habitat for these species presents sufficient scientific information to suggest that federal action could be warranted; the Service requested information on the corals and solicited the participation of peer reviewers to facilitate a status review of the three species.69 FR 34995(6/23/04).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Industrial Excess Landfill, Inc., No. 5:89-CV-1988 (N.D. Ohio June 15, 2004). Five settling CERCLA defendants must perform the remedy for the Industrial Excess Landfill Superfund site in Uniontown, Ohio, specified in the site's remedial design; pay EPA $17,925,00 (plus interest on this amount accrued since October 1, 2003) for past response costs associated with the release or threatened release of hazardous substances at the site; and pay all interim and future response costs (as defined by the consent decree) that have been or will be incurred by the United States, subject to a $700,000 limit for the portion of future response costs associated with monitoring and overseeing the defendants' performance of the remedy.69 FR 35060(6/23/04).
  • United States v. City of Lebanon, No. 04-3125-CV-S-RED (S.D. Mo. Apr. 12, 2004). Settling CWA defendants must pay a civil penalty of $72,000 and perform injunctive relief to address permit violations at a wastewater treatment plan in Lebanon, Missouri, and to address sewage overflows from the city's sewage collection system.69 FR 35060(6/23/04).

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

THE CONGRESS

CHAMBER ACTION:

  • S. 1848 (Amending the Bend Pine Nursery Land Conveyance Act), 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, was passed by the House, clearing the measure for the President. 150 Cong. Rec. H4613 (daily ed. June 21, 2004).
  • H.R. 3846 (Tribal Forest Protection Act of 2004), which would authorize the Secretary of Agriculture and the Secretary of the Interior to enter into an agreement or contract with Indian tribes meeting certain criteria to carry out projects to protect Indian forest land, was passed by the House. 150 Cong. Rec. H4612 (daily ed. June 21, 2004).

COMMITTEE ACTION:

  • H.R. 142 (wastewater reclamation), was reported by the Committee on Resources. H. Rep. No. 108-564, 150 Cong. Rec. H4857 (daily ed. June 23, 2004). The bill would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the Inland Empire regional water recycling project, to authorize the Secretary to carry out a program to assist agencies in projects to construct regional brine lines in California, and to authorize the Secretary to participate in the Lower Chino Dairy Area desalination demonstration and reclamation project.
  • H.R. 646 (boundary expansion), was reported by the Committee on Resources. H. Rep. No. 108-563, 150 Cong. Rec. H4857 (daily ed. June 23, 2004). The bill would expand the boundaries of the Fort Donelson National Battlefield to authorize the acquisition and interpretation of lands associated with the campaign that resulted in the capture of the fort in 1862, and for other purposes.
  • H.R. 1156 (wastewater reclamation), was reported by the Committee on Resources. H. Rep. No. 108-562, 150 Cong. Rec. H4857 (daily ed. June 23, 2004). The bill would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to increase the ceiling on the federal share of the costs of phase I of the Orange County, California, Regional Water Reclamation Project.

BILLS INTRODUCED:

  • S. 2550 (Crapo, R-Idaho) (FWPCA; SDWA), would amend the FWPCA and SDWA to improve water and wastewater infrastructure in the United States. 150 Cong. Rec. S7104 (daily ed. June 21, 2004). The bill was referred to the Committee on Environment and Public Works.
  • S. 2552 (Conrad, D-N.D.) (environmental assistance), would provide environmental assistance to non-federal interests in the state of North Dakota. 150 Cong. Rec. S7104 (daily ed. June 21, 2004). The bill was referred to the Committee on Environment and Public Works.
  • S. 2554 (Frist, R-Tenn.) (water resources), would provide for the consideration and development of water and related resources to authorize the Secretary of the Army to construct various projects for improvements to rivers and harbors of the United States and for other purposes. 150 Cong. Rec. S7104 (daily ed. June 21, 2004). The bill was referred to the Committee on Environment and Public Works.
  • S. 2564 (Hutchison, R-Tex.) (water resources), 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. S7311 (daily ed. June 23, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2567 (Feinstein, D-Cal.) (boundary adjustment), would adjust the boundary of Redwood National Park in the state of California. 150 Cong. Rec. S7311 (daily ed. June 23, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 4627 (Berkley, D-Nev.) (Nuclear Waste Policy Act), would redirect the Nuclear Waste Fund established under the Nuclear Waste Policy Act of 1982 into research, development, and utilization of risk-decreasing technologies for the onsite storage and eventual reduction of radiation levels of nuclear waste, and for other purposes. 150 Cong. Rec. H4646 (daily ed. June 21, 2004). The bill was referred to the Committee on Energy and Commerce and to the Committees on Science, and Ways and Means.
  • H.R. 4638 (Davis, R-Va.) (FWPCA), would amend the FWPCA to impose limitations on wetlands mitigation activities carried out through the condemnation of private property. 150 Cong. Rec. H4764 (daily ed. June 22, 2004). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 4642 (Ferguson, R-N.J.) (coastal heritage trail), would provide for the extension of the New Jersey Coastal Heritage Trail into the Township of Woodbridge, New Jersey. 150 Cong. Rec. H4764 (daily ed. June 22, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4645 (Lucas, D-Ky.) (environmental infrastructure), would authorize the Secretary of the Army to provide federal assistance for environmental infrastructure projects in northern and northeastern Kentucky. 150 Cong. Rec. H4765 (daily ed. June 22, 2004). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 4647 (McKeon, R-Cal.) (Native Americans), would provide for certain lands to be held in trust for the Utu Utu Gwaitu Paiute Tribe. 150 Cong. Rec. H4765 (daily ed. June 22, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4651 (Smith, R-Mich.) (agriculture), would establish a federal interagency task force to promote the benefits, safety, and potential uses of agricultural biotechnology outside the United States to improve human and animal nutrition, increase crop productivity, and improve agricultural sustainability while ensuring the safety of food and the environment, and for other purposes. 150 Cong. Rec. H4892 (daily ed. June 23, 2004). The bill was referred to the Committee on International Relations.
  • H.R. 4652 (Nussle, R-Iowa) (CAA; methyl tertiary butyl ether), would amend the CAA to prohibit the use of methyl tertiary butyl ether as a fuel additive, to require federal fleet vehicles to use ethanol fuel, and for other purposes. 150 Cong. Rec. H4892 (daily ed. June 23, 2004). The bill was referred to the Committee on Ways and Means and to the Committee on Energy and Commerce.
  • H.R. 4654 (Portman, R-Ohio) (Tropical Forest Conservation Act), would reauthorize the Tropical Forest Conservation Act of 1998 through fiscal year 2007, and for other purposes. 150 Cong. Rec. H4892 (daily ed. June 23, 2004). The bill was referred to the Committee on International Relations.
  • H.R. 4666 (Dingell, D-Mich.) (Native Americans), would provide for and approve the settlement of certain land claims of the Sault Ste. Marie Tribe of Chippewa Indians. 150 Cong. Rec. H4893 (daily ed. June 23, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4667 (Duncan, R-Tenn.) (hydroelectric power), would authorize and facilitate hydroelectric power licensing of the Tapoco Project, and for other purpose. 150 Cong. Rec. H4893 (daily ed. June 23, 2004). The bill was referred to the Committee on Resources and to the Committee on Energy and Commerce.

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:

  • A jointreportby the United Nations (U.N.) Economic Commission for Europe and the U.N. Economic and Social Commission for Asia and the Pacific concluded that about 90% of the waters in the two rivers that feed central Asia's Aral Sea are diverted before reaching the Sea. Kyrgyzstan and Tajikistan divert water for hydropower, while Uzbekistan, Kazakhstan and Turkmenistan do so for irrigation.
  • The Australian Koala Foundation asked the government to designate the koala an endangered species, contending that only 100,000 remain and that 60% of their habitats have been either destroyed or damaged. The primary reason for the decline is urbanization. Koalas presently receive some degree of protection but their sole source of food, eucalyptus trees, do not.
  • Nigerian President Olusegun Obasanjo funded a study to examine how to use Congo River water to replenish Lake Chad, which has been severely depleted due to agricultural use and expansion of the Sahara Desert.
  • The advocacy group WWFsaidthat China's Yangtze River faces serious threats from the 46 planned or existing dams along its length.
  • The World Health Organization (WHO) released itsAtlas of Children's Health And The Environment. More than a third of all disease cases related to the environment involve children under 10 years of age, according to the WHO.

CLIMATE CHANGE:

  • The discovery of a warm-weather insect never previously known to breed in England, the Nezara viridula, or southern green stinkbug, in London is further evidence of global warming, according to the specialists at London's Natural History Museum.
  • U.N. Environment Program head Klaus Toepfer and Bjorn Lomborg, author ofThe Skeptical Environmentalist, debated over measures to address global warming. Lomborg said that the money spent on addressing climate change should instead be used to combat AIDS, poverty, and inadequate or unsanitary water supplies.

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

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