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Weekly Update Volume 34, Issue 24

08/30/2004

LITIGATION

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

CERCLA, CONTRIBUTION:

The First Circuit upheld a lower court decision finding a waste hauler liable for past and future response costs related to groundwater cleanup. A hazardous waste generator filed a contribution action against the hauler, and the district court found the hauler liable for $2,651,838. It later amended the judgment to include $507,369 for prejudgment interest. The hauler appealed, but each of its affirmative defenses were dismissed. The generator's contribution action was not time-barred under CERCLA §9613. A 1998 declaratory judgment against the generator did not trigger the statute of limitations for the groundwater cleanup because being held jointly and severally liable for all future costs of removal or remedial action is not a judgment for the recovery of such costs. In addition, until a PRP incurs future costs, regardless of whether liability has been assessed against a contribution defendant, there has been no expenditure or fixing of costs for which a PRP may seek contribution. Further, the generator was not precluded from seeking contribution under res judicata. Nor did a consent decree entered into by the hauler, the United States, and Rhode Island provide the hauler with contribution immunity against the generator's contribution action because it does not provide contribution immunity for costs relating to groundwater protection or remediation. In addition, the district court's legal conclusions as to liability were proper, and its factual findings were not erroneous. Last, the court upheld the district court's judgment and award of prejudgment interest. American Cyanamid Co. v. Capuano, No. 03-2143, 34 ELR 20078 (1st Cir. Aug. 18, 2004) (52 pp.).

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

The Fourth Circuit reversed a district court decision dismissing a landowner's petition for attorneys fees, which he sought after successfully challenging a condemnation action against the U.S. Army Corps of Engineers. The district court erred in determining that the landowner failed to establish financial eligibility under the EAJA.Broaddus v. United States Army Corps of Engineers, No. 03-2257, 34 ELR 20074 (4th Cir. Aug. 13, 2004) (18 pp.).

CONSTITUTIONAL LAW, FREE EXERCISE CLAUSE, NATIVE AMERICANS:

The Third Circuit upheld a district court decision that a state wildlife and game commission's refusal to exempt a Native American, who owns black bears for religious purposes, from a permit fee violates the First Amendment's Free Exercise Clause. The permitting scheme is subject to strict scrutiny. The permit fee waiver mechanism creates a regime of individualized, discretionary exemptions, and the challenged fee provisions are substantially underinclusive with respect to its asserted goals and thus fail the requirement of general applicability. Further, the permitting scheme could not withstand strict scrutiny because the commission was unable to demonstrate a compelling interest in refusing to grant a religious exemption. Because the state sets its fees at modest levels and provides for hardship waivers, it clearly does not regard the objective of discouraging the possession of wild animals as a matter "of the highest order." And even if the asserted interests were compelling, the fee scheme is not narrowly tailored to further them. However, the commission officials could not be held liable under §1983 because they were entitled to qualified immunity.Blackhawk v. Pennsylvania, Nos. 02-3947, -4158, 34 ELR 20079 (3d Cir. Aug. 20, 2004) (16 pp.).

INSURANCE, POLLUTION EXCLUSION:

The Fifth Circuit upheld a district court decision holding that an insurer had a duty to defend an oil company in an underlying suit in which the company was alleged to have polluted a nearby ranch. The insurance contract contained a pollution exclusion clause that would, by itself, bar coverage. The company, however, purchased a pollution endorsement to the contract that eliminates the exclusion. And because all the conditions required for the endorsement to take effect were present, the insurer had a duty to defend the oil company. In addition, damages awarded to the company for hiring a law firm to defend it in the underlying case were not erroneous, and the district court properly admitted expert testimony. However, the district court erred by incorrectly calculating prejudgment interest.Primrose Operating Co. v. National American Insurance Co., No. 03-10861, 34 ELR 20081 (5th Cir. Aug. 23, 2004) (38 pp.).

NEPA, ESA, TIMBER HARVESTING:

The Eighth Circuit affirmed a district court decision that the U.S. Forest Service's decision to approve harvesting timber in the Mark Twain National Forest did not violate NEPA or the ESA. The Forest Service did not act arbitrarily and capriciously in determining that the project would have no significant impact on the environment. Thus, they were not required to complete an EIS rather than an EA. Further, the Forest Service and the FWS did not act arbitrarily and capriciously in determining that the existing data on endangered Indiana bats was sufficient to conclude that the project was not likely to jeopardize the species. Thus, no violation of ESA occurred. Thus, the district court's grant of summary judgment to the Forest Service was proper. Heartwood, Inc. v. United States Forest Service, No. 03-3267, 34 ELR 20083 (8th Cir. Aug. 25, 2004) (13 pp.).

NEPA, ESA, RULEMAKING:

The Eighth Circuit upheld a district court decision granting summary judgment to the National Park Service (NPS) on an association's complaint seeking to enjoin the NPS' decision to open 11 bays of the Voyageurs National Park to recreational snowmobile use. The NPS did not decide to open the bays to snowmobiling in 2001. Rather, the bays were opened to snowmobiling in 1991 when the NPS promulgated a regulation. Nothing in the administrative record establishes that the NPS was arbitrary or capricious in carrying out its NEPA and ESA obligations in conjunction with the 1991 opening of the bay areas to motorized-recreational use. Based on a review of the record, the NPS was not arbitrary or capricious in its subsequent "reopening" of these 11 bays after deciding not to renew the annually decided closing. Voyageurs National Park Ass'n v. Norton, No. 03-2911, 34 ELR 20082 (8th Cir. Aug. 25, 2004) (12 pp.).

NEPA, WILDERNESS ACT:

The Ninth Circuit upheld a district court decision that the Forest Service violated NEPA when it issued multiyear special-use permits and granted renewals of special-use permits to commercial packstock operators in the John Muir and Ansel Adams Wilderness Areas. The Forest Service clearly breached its obligation under NEPA by failing to take the requisite "hard look" at the environmental consequences of the multiyear special-use permits. In addition, the Forest Service impermissibly characterized the one-year renewals of special-use permits as "categorical exclusions" outside the purview of NEPA. The district court's grant of injunctive relief requiring the Forest Service to comply with NEPA was also proper. The district court was incorrect, however, in holding that the requirements of the Wilderness Act had not been violated. The Wilderness Act imposes substantive requirements on an administering agency and that there are triable issues of fact regarding whether the Forest Service permits violated those requirements.High Sierra Hikers Ass'n v. Blackwell, Nos. 02-15504 et al., 34 ELR 20084 (9th Cir. Aug. 25, 2004) (31 pp.).

NEPA, NATIONAL FOREST MANAGEMENT ACT, TIMBER HARVEST:

The Ninth Circuit reversed a district court decision dismissing environmental groups' challenge to a timber harvest approved by the U.S. Forest Service as part of a watershed restoration project in the Idaho Panhandle National Forest. The Forest Service failed to take the requisite "hard look" under NEPA with respect to prior timber harvests and the project's impact on the Westslope Cutthroat trout. In addition, the "Water and Sediment Yields" model used by the Forest Service in conducting its NEPA analysis contained faulty analysis. In addition, the Forest Service violated the NFMA. The project does not comply with the forest plan with regard to protection of fisheries, soils impact, and old growth species viability.Lands Council v. Powell, No. 03-35640, 34 ELR 20073 (9th Cir. Aug. 13, 2004) (26 pp.).

FIFTH AMENDMENT, TAKINGS:

The Federal Circuit reversed a lower court decision that a commercial fishing company suffered a taking when its fishing permits were revoked under 1997 and 1998 Appropriations Acts. The Appropriations Acts cancelled the company's existing permits and authorization letter and prevented any further permits from being issued to the company's fishing vessel. At the time, no other vessel was affected by the legislation. Nevertheless, the company did not suffer the taking of a property interest that is legally cognizable under the Fifth Amendment. The company did not and could not possess a property interest in its fishery permits and authorization letter. And contrary to the lower court's conclusion, the company did not have a legally cognizable property interest in the use of its vessel to fish for Atlantic mackerel and herring in the exclusive economic zone (EEZ). When the company purchased the vessel, the Magnuson Stevens Fishery Conservation and Management Act and the attendant regulatory scheme precluded any permitted fisherman from possessing a property right in his vessel to fish in the EEZ.American Pelagic Fishing Co. v. United States, No. 03-5101, 34 ELR 20075 (Fed. Cir. Aug. 16, 2004) (31 pp.).

NATURAL RESEARCH AREA, ISSUE PRECLUSION, RIPENESS:

The Tenth Circuit upheld the dismissal of a mining company's suit challenging the government's designation of land in the Arapaho National Forest and the Pike & San Isabel National Forests as a natural research area. The company's suit is barred by the doctrine of issue preclusion. Because the company's first suit was dismissed on ripeness grounds, it argued there has been no final adjudication on the merits. The company, however, is mistaken in asserting that a jurisdictional dismissal can have no issue-preclusive effect. Although the general rule is that a final adjudication on the merits is a prerequisite to issue preclusion, dismissals for lack of jurisdiction preclude relitigation of the issues determined in ruling on the jurisdiction question. Here, the company is raising the same claim--that the designation was contrary to law--and is simply attempting to put forth a new theory why that claim is ripe. The ripeness issue is therefore "in substance the same" as that raised in the first case and cannot be relitigated.Park Lake Resources Ltd. Liability Co. v. United States Department of Agriculture, No. 02-1429, 34 ELR 20076 (10th Cir. Aug. 13, 2004) (15 pp.).

CONSTITUTIONAL LAW, CALIFORNIA COASTAL ACT:

A California appellate court held that the state coastal commission's development of a local coastal program for Malibu, requiring it to process coastal development permits, is constitutional. The amendment to the California Coastal Act that required the commission to prepare a local coastal plan for Malibu was not unconstitutional "special legislation." Although other coastal cities do not have local coastal plans, the legislature's decision to focus on Malibu was rational because Malibu stood head and shoulders above other entities in the burden it placed on the commission. Further, the legislature was entitled to select Malibu from among cities that had not implemented a local coastal plan because the state is entitled to solve a problem incrementally, starting with the worst offenders first. In addition, the local coastal plan is not subject to referendum.City of Malibu v. California Coastal Comm'n, No. B168229, 34 ELR 20080 (Cal. Ct. App. Aug. 23, 2004) (11 pp.).

CALIFORNIA COASTAL ACT, CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA):

A California appellate court upheld the dismissal of an association's petition challenging the adequacy of a county's environmental impact report (EIR) prepared in connection with a proposed amendment to the local coastal plan (LCP) concerning greenhouse development. After the petition was filed, the county realized that the EIR had been prepared unnecessarily because the approval of LCP amendments by the California Coastal Commission is exempt from the EIR requirements of CEQA. The association argued that the county waived the exemption and obligated itself to comply with EIR requirements merely by preparing an EIR. Contrary to the association's argument, however, the county's preparation of the EIR did not waive the exemption. The California Coastal Act and CEQA empower the California Coastal Commission to approve LCP amendments pursuant to a regulatory program that is exempt from the EIR requirements of CEQA. Nothing in CEQA or the Coastal Act gives local government the power to opt out of the Commission's regulatory program and choose to be governed by CEQA's regulatory scheme.Santa Barbara County Flower & Nursery Growers Ass'n v. County of Santa Barbara, No. B170027, 34 ELR 20077 (Cal. Ct. App. Aug. 17, 2004) (13 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 stayed the effectiveness of two subcategories of the NESHAPs for stationary combustion turbines: lean premix gas-fired turbines and diffusion flame gas-fired turbines.69 FR 51188(8/18/04).
  • EPA proposed amendments to the accelerated phaseout regulations that govern the production, import, export, transformation and destruction of substances that deplete the ozone layer; the amendments would provide the framework for an exemption permitted under the Montreal Protocol on substances that deplete the ozone layer and specify the amount of methyl bromide that may be supplied from available stocks and new production and consumption to meet critical uses.69 FR 52402(8/25/04).
  • EPA required individuals or legal entities that produce, import, distribute, sell, apply, or buy methyl bromide to provide EPA with data on the amount of methyl bromide material they hold for sale and amounts they hold for transfer to another entity so that EPA can enact a rule to allow continued production, consumption, and use of methyl bromide for critical purposes.69 FR 52407(8/25/04).
  • EPA approved Indiana's submittal of revised mobile emission inventories and 2005 and 2007 motor vehicle emissions budgets, which have been developed using MOBILE6, an updated model for calculating mobile emissions of ozone precursors.69 FR 52431(8/26/04).
  • EPA proposed to approve a revision to the Iowa CAA §111(d) plan so that it could adopt the commercial and industrial solid waste incineration (CISWI) rule, which contains major components addressing the regulatory requirements applicable to existing CISWI units.69 FR 51959(8/24/04).
  • EPA announced the redesignation of the lead nonattainment area in Iron County, Missouri, to attainment of the NAAQS for lead and announced the approval of the maintenance plan for this area including a settlement agreement.69 FR 51956(8/24/04).

DRINKING WATER:

  • EPA approved the use of three additional analytical methods, which use inductively coupled plasma mass spectrometry technology for compliance determinations of uranium in drinking water.69 FR 52181(8/25/04).
  • EPA withdrew a final rule that approved three additional analytical methods for compliance determinations of uranium in drinking water after receiving an adverse comment.69 FR 52182(8/25/04).

ENERGY CONSERVATION:

  • DOE incorporated certain energy conservation standards that apply to residential central air conditioners and central air conditioning heat pumps to theCFR.69 FR 51001(8/17/04).

HAZARDOUS SUBSTANCES:

  • EPA proposed federal standards and practices for conducting all appropriate inquiries as required under CERCLA §101(35)(B)(ii) and (iii) that would establish specific regulatory requirements and standards for conducting all appropriate inquiries into the previous ownership, uses, and environmental conditions of a property for the purposes of meeting the all appropriate inquiries provisions necessary to qualify for certain landowner liability protections under CERCLA.69 FR 52581(8/26/04).
  • EPA entered into a consent decree that allows it access and use of 200,000 cubic yards of borrow material, continued access to the Elizabeth Mine Superfund site, and implementation of institutional controls at the site.69 FR 51676(8/20/04).
  • EPA announced a proposed administrative settlement, pursuant to CERCLA, relating to the Olean Steel Sales and Service, Inc. Superfund site.69 FR 52266(8/25/04).
  • EPA gave notice of a proposed administrative order, under CERCLA, to provide a covenant not to sue for half of the past response costs of Olympia Nominee Trust, which is part of the Wells G & H superfund site.69 FR 52266(8/25/04).

TRANSPORTATION:

  • DOT's Research and Special Programs Administration proposed to amend requirements in the hazardous materials regulations for the examination, testing, certification, and transportation of lighters and lighter refills.69 FR 50985(8/16/04).
  • DOT and the Department of Homeland Security requested public comment on enhanced security requirements for the rail transportation of hazardous materials that pose a toxic inhalation hazard and proposed having specific security enhancements such as improvements to security plans, modifications of methods used to identify shipments, enhanced requirements for temporary storage, strengthened tank car integrity, and implementation of tracking and communication systems.69 FR 50994(8/16/04).

WATER QUALITY:

  • EPA established CWA effluent limitations guidelines and new source performance standards for concentrated aquatic animal production facilities.69 FR 51930(8/23/04).
  • EPA gave notice of a proposed consent agreement and final order resolving penalties for alleged violation of §301(a) of the CWA, resulting in a penalty of $3,000 for E.J. Mahoney Construction.69 FR 51080(8/17/04).

WILDLIFE:

  • FWS, pursuant to the ESA, proposed to designate approximately 4,649 acres of critical habitat in the central valley floor of Kern County, California, for the Buena Vista Lake shrew.69 FR 51442(8/19/04).
  • FWS proposed to designate a critical habitat for the Santa Ana sucker and requested public comment on this proposal.69 FR 51417(8/19/04).
  • FWS and the California Department of Fish and Game prepared a draft EIS to analyze the impacts of a proposed restoration to tidal action 1,400 acres of former salt ponds on Bair Island, Don Edwards San Francisco Bay National Wildlife Refuge and the Bair Island State Ecological Reserve in South San Francisco Bay.69 FR 52730(8/27/04).
  • NOAA announced temporary restrictions that provide protection to an aggregation of North Atlantic right whales by restricting lobster trap/pot and anchored gillnet fishermen.69 FR 51776(8/23/04).

DOJ NOTICES OF SETTLEMENT:

  • United States v. City of Cambridge, No. 01-10604 (S.D. Ohio July 27, 2004). A settling CWA defendant must identify and remove any sewer cross connection existing in its collection system; implement several flow reduction projects by December 2005; implement several pump station improvement projects by January 2007; complete the necessary renovations to its plant sludge digesters; update its operations and maintenance manual; develop a sewer overflow action plan; evaluate its collection system one year after implementation of all the proposed consent decree work, and if excessive infiltration/inflow is discovered, submit a work plan to the governmental agencies detailing what it will do to remove the excess; and must pay civil penalties totaling $70,000.69 FR 51324(8/18/04).
  • United States v. Debtor Kaiser Aluminum Corp., No. 02-10429 (D. Del. Aug. 13, 2004). A settling CERCLA defendant must convey property it owns to a custodial trust that will undertake needed response action at the site and must pay $2,250,000 in funding for the trust and an $18,000, 000 insurance policy that will cover certain work at the site.69 FR 51325(8/18/04).
  • United States v. City of Los Angeles, No. 01-191-RSWL (C.D. Cal. Aug. 5, 2004). A settling CWA defendant must begin work on specific projects to increase the sewer system's capacity and submit a report in two years recommending additional capacity projects necessary to assure that the sewer system has sufficient capacity to convey wet weather flows; begin work on the rehabilitation and replacement of the sewer pipes in poor condition and submit a report in two years recommending what further rehabilitation and replacement work is necessary; clean approximately 2,800 miles of pipe on a three-year rolling average; inspect all restaurants each year, and where necessary, improve the city's enforcement of its ordinance regulating the discharge of grease from restaurants; address sewer odors; inspect at least 600 miles of pipe annually with closed circuit TV; and pay $800,000 to the United States and $800,000 to California.69 FR 51325(8/18/04).
  • United States v. Stone Container Corp., N. 3:04CV552 (E.D. Va. Aug. 5, 2004). A settling CAA defendant must pay $835,000 to redress violations occurring at the Virginia Kraft Pulp Paper Mill.69 FR 51326(8/18/04).
  • United States v. Mobile Exploration, No. 2:98-DV-00220-ST (D. Utah Aug. 3, 2004). Settling CWA defendants must install new equipment and implement measures to prevent spills and minimize the volume of future spills, implement a supplemental environmental project to extend a water line to provide drinking water to local residents, and pay a civil penalty of $515,000. 69 FR 51326 (8/18/04).
  • City of Bernardino Municipal Water Department v. United States, Nos. CV 96-8867, -5205 (C.D. Cal. Aug. 11, 2004). A settling CERCLA defendant must complete the construction of groundwater extraction and treatment facilities for Muscoy Operable Unit at the Newmark Site, 50 years of operation and maintenance of both the Muscoy and the Newmark Operable Units, and site-wide monitoring.69 FR 51326(8/20/04).
  • United States v. Holly Ridge Associates, L.L.C.,No. 7:01-CV-36-BO(3) (E.D. N.C. Aug. 11, 2004). A settling CWA defendant must restore areas impacted by discharged pollutants in waters of the United States, perform mitigation, and pay a civil penalty.69 FR 52310(8/25/04).
  • United States v. City of Waukegan, Illinois, No. 04 C 5172 (N.D. Ill. Aug. 11, 2004). Settling CERCLA defendants must finance and perform the U.S.-selected remedial action at the Waukegan Manufactured Gas & Coke Plant site.69 FR 52311(8/25/04).
  • United States v. Yellowstone Mountain Club, LLC, No. CV 04-58-BU-RWA (D. Mont. Aug. 9. 2004). A settling CWA defendant must restore impacted areas, perform mitigation, and pay a civil penalty for discharging pollutants without permission into the waters of the United States.69 FR 52311(8/25/04).

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

THE CONGRESS

Congress is currently in recess but will reconvene September 7, 2004.

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

IN THE STATES

Click on a state name below to see its information in ELR UPDATE. Or go to http://www.elr.info/State/stateupdate.cfmto view the complete section.

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

INTERNATIONAL

GENERAL:

  • Areportpublished by the European Commission described serious shortcomings in the implementation of European Union (EU) environmental law. This deprives citizens of the high level of environmental protection that they expect. The "Fifth Annual Survey on the implementation and enforcement of EU environmental law" stressed that Member States are late in transposing environmental Directives: until the end of 2003, there were 88 cases in which environmental Directives were not transposed on time. In 118 cases, the Directives were not correctly transposed, and in 95 cases Member States did not meet "secondary" obligations under the Directives, for example deadlines for presenting certain plans, submitting data or designating protected areas. France, Greece, Ireland, Italy and Spain have the worst records. Most of the shortcomings have been found in the areas of water, waste, nature protection and environmental impact assessments.
  • Areportby the United Nations (U.N.) Environment Program said that the Barents Sea, north of Norway and Russia in the Arctic Ocean, is threatened by the energy industry, the introduction of foreign species, nearby storage of nuclear waste and overfishing.
  • A U.N.reportconcludes that 40% of the world's population lacks access to basic sanitation.
  • At the World Water Week meetings in Stockholm,discussionsincluded methods of decreasing consumption of meats and dairy products.

CLIMATE CHANGE:

  • A European Environmental Agencyreportpredicts glacial melting, higher temperatures, higher greenhouse gas concentrations and monsoon-like rainfall in parts of Europe within 50 years.
  • The United Kingdom (U.K.) Department for Environment, Food and Rural Affairs (DEFRA) said that Denmark, Finland, Italy, Netherlands, Sweden, Slovenia, Lithuanian, and Ireland had agreed to use the U.K.'s electronic emissions trading registry. Norway is expected to follow.
  • A U.K. scientistsaidmore attention should be placed on "tipping points"; i.e., critical areas that act as regulators of the Earth's environment and which, if subjected to sufficient stress, could precipitate significant changes in climate.
  • Professor Meinrat Andreae of the Max Planck Institute in Mainz, Germanysaidthat pollution is obscuring the true extent and impact of global warming.
  • New Zealand and the Netherlandssignedan emissions trading cooperative agreement.
  • Astudypublished in the journalScience concluded that existing technologies, such as windmills, solar panels, and electric-powered cars could cap the buildup of greenhouse gases within 50 years.

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

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