Jump to Content

Weekly Update Volume 34, Issue 27

09/27/2004

 

 LITIGATION

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

NEPA, ESA:

The Ninth Circuit held that the U.S. Navy need not review the probable significant environmental impacts of an accidental explosion of a missile during operations at its submarine base in Bangor, Washington, under NEPA, and that it does not need to consult the National Marine Fisheries Service (NMFS) regarding the possible effects of such an explosion on threatened salmon species inhabiting the waters adjacent to the base under the ESA. Nonprofit groups filed suit against the Navy claiming NEPA and ESA violations with regard to a missile storage upgrade program at the base. Because the Navy has only limited discretion in the program's operation, and within that discretion the risk of a missile explosion is remote, NEPA does not require the Navy to issue an EIS assessing the environmental effects of such an accident at Bangor. Similarly, because of the Navy's limited discretion and the remoteness of a possible accidental missile explosion, the ESA does not require the Navy to consult with the NMFS about whether such an accident would jeopardize the continued existence or adversely affect the critical habitat of threatened salmon species. Ground Zero Center for Nonviolent Action v. United States Department of the Navy, No. 02-36096, 34 ELR 20100 (9th Cir. Sept. 21, 2004) (20 pp.).

CERCLA, INFORMATION REQUEST:

The Sixth Circuit affirmed a lower court summary judgment decision and consequent imposition of approximately $1.9 million in civil penalties against an individual for failing to adequately respond to EPA's request for information under CERCLA §104. The request was valid, the individual was not exempt from compliance with the request, and the request was not barred by res judicata. In addition, the civil penalty was proper, and CERCLA §104 does not violate the Fifth Amendment's Due Process Clause. United States v. Gurley, No. 03-5132, 34 ELR 20099 (6th Cir. Sept. 21, 2004) (8 pp.).

CONSTITUTIONAL LAW, NATIONAL FOREST MANAGEMENT ACT (NFMA), STANDING:

The Tenth Circuit upheld the dismissal of a timber company's claim challenging the U.S. Forest Service's Historical Preservation Plan (HPP) for the Medicine Wheel National Historic Landmark and Vicinity in the Bighorn National Forest. The Forest Service rejected the company's challenge to the HPP, which recognizes explicitly that the cultural and historic importance of the Medicine Wheel is, for many Native Americans, an element of their religious tradition. The company then filed suit in federal court. The company, however, lacked standing to pursue its constitutional claim. The company failed to allege a non-economic injury under the Establishment Clause, and its alleged economic injury of the loss of opportunity for logging is not redressable. And although the company had standing to bring its NFMA claim, the company failed to show that the Forest Service abused its discretion in finding that Amendment 12, which implemented the HPP, was not a "significant" change to the overall forest plan.Wyoming Sawmills Inc. v. United States Forest Service, No. 02-8009, 34 ELR 20098 (10th Cir. Sept. 21, 2004) (22 pp.).

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA), ENVIRONMENTAL IMPACT REPORT (EIR):

A California appellate court upheld a city's decision not to prepare an EIR for the construction of a senior citizens housing complex. A neighborhood group argued that the project would have a significant adverse aesthetic effect on the environment. But based on the project's environmental context, and the fact that the project has undergone an extensive design review process to mitigate its visual impact, there is no environmentally significant aesthetic effect that requires an EIR. Where scenic views or environmentally sensitive areas are concerned, aesthetic considerations are not discounted as environmental impacts merely because they involve subjective judgments. But the legislature, in enacting CEQA, did not intend to require an EIR where the sole environmental impact is the aesthetic merit of a building in a highly developed area.Bowman v. City of Berkeley, No. A103980, 34 ELR 20097 (Cal. 1st App. Ct. Sept. 20, 2004) (32 pp.).

Correction:The Fifth Circuit, inLouisiana Environmental Action Network v. United States Environmental Protection Agency34 ELR 20095, vacated measures approved by EPA as part of Louisiana’s plan to reduce volatile organic compound emissions in the Baton Rouge area. Weekly Update No. 26 stated that the court denied review of a revised attainment demonstration SIP as well as the state's inter-precursor trading provision, which was based on EPA's finding that an approvable attainment demonstration existed for the Baton Rouge area, holding both issues as moot. In fact, EPA had not approved a revised attainment demonstration. EPA previously requested, and the court granted, a voluntary vacatur of the Agency's final rules approving the Baton Rouge attainment demonstration and inter-precuror trading provisions. We apologize for any confusion this may have caused.

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, authorized by the CAA, reclassified certain areas designated as nonattainment for the 8-hour ozone NAAQS.69 FR 56711(9/22/04).
  • EPA informed individuals that produce, import, distribute, sell, apply, or buy methyl bromide of a letter that clarifies information needed to allow the continued production, consumption, and use of methyl bromide for proposed critical uses exempted from the phaseout of methyl bromide allowed under the CAA.69 FR 56756(9/22/04).
  • EPA approved a negative declaration from New Jersey that fulfills EPA's emission guidelines for existing commercial and industrial solid waste incinerator sources.69 FR 57188(9/24/04).
  • EPA approved a revision to a rule submitted by Colorado that redesignates the Lamar, Colorado, and Steamboat Springs, Colorado, areas from nonattainment to attainment for particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers.69 FR 56163(9/20/04).

HAZARDOUS AND SOLID WASTES:

  • EPA granted American Chrome & Chemical LP's petition to exclude from the RCRA lists of hazardous wastes 1,450 cubic yards per year of dewatered sludge generated from the production of chrome oxide green pigments at the company's facility in Corpus Christi, Texas.69 FR 56357(9/21/04).
  • EPA granted final approval to Missouri to operate an underground storage tank program.69 FR 56363(9/21/04).
  • EPA withdrew a proposed rule to grant Teris LLC's petition to exclude from the RCRA lists of hazardous wastes certain incineration ash generated by the company's facility in El Dorado, Arizona, due to adverse comments.69 FR 56382(9/21/04).

PESTICIDES:

  • EPA announced the availability of its risk assessments, preliminary risk reduction options, and related documents for the pesticide chlorsulfuron, and opened a public comment period on these documents in which the public is encouraged to suggest risk management ideas or proposals to address identified risks.69 FR 57281(9/24/04).
  • EPA announced the availability of its tolerance reassessment decision for the pesticide flumetsulam, and opened a public comment period on this document, related risk assessments, and other support documents.69 FR 57284(9/24/04).
  • EPA received and requested public comment on a quarantine exemption request from the Hawaii Department of Agriculture to use the pesticide calcium hydroxide to treat up to 4,000 acres of outdoor plants in nurseries, residential areas, parks, hotels and resorts, forest habitats, and natural areas to control Coqui and Greenhouse frogs.69 FR 57288(9/24/04).
  • EPA announced the availability of its tolerance reassessment decision for desmedipham, ensuring that it met current health and food safety standards, and opened a public comment period on this document, related risk assessments, and other support documents.69 FR 56760(9/22/04).

PRESIDENTIAL PROCLAMATION:

  • The President issued Presidential Proclamation 7818 concerning the 2004 National Farm Safety and Health Week, noting that the week is a time to "reflect on the contributions of America's farm and ranch families and underscore our commitment . . . to protecting our farm and ranchland" and highlighting the importance of maintaining safety and health in farming operations, where operators engage in risks such as operating farm machinery, applying agricultural chemicals and fertilizers, handling large and unpredictable livestock, and working in places where dust and toxins contaminate the air.69 FR 56925(9/23/04).

WATER QUALITY:

  • EPA determined that adequate facilities for the safe and sanitary treatment of sewage from all vessels are available at the 11 disposal facilities operating in portions of the Connecticut water.69 FR 57289(9/24/04).
  • EPA, Region 9 issued a final general NPDES permit establishing effluent limitations, prohibitions, and other conditions for discharges from offshore oil and gas exploration, development, and production facilities located in federal waters off the coast of Southern California.69 FR 56764(9/22/04).
  • EPA announced the availability of information relevant to determining whether alternate regulatory requirements are appropriate for facilities under the CWA that handle oil below a certain threshold amount.69 FR 56184(9/20/04).
  • EPA announced that there is relevant information that determines whether alternate regulatory requirements for facilities with oil-filled and process equipment under the CWA would be appropriate.69 FR 56185(9/20/04).

WILDLIFE:

  • FWS announced the availability of the final recovery plan to delist, under the ESA, the Puerto Rican demon, which is the second largest species found Puerto Rico, living from 18-1,183 ft above sea level in large granite caves or streams.69 FR 57358(9/24/04)
  • FWS issued late-season frameworks from which states may select season dates, limits, and other options for the 2004-2005 migratory bird hunting season; the earliest commencement date for late-season hunting is September 25, 2004.69 FR 57139(9/23/04).
  • FWS removed the Tinian monarch, a forest bird endemic to the island of Tinian in the Mariana archipelago that was listed as endangered in 1970 and was "downlisted" to threatened status in 1987, from the ESA list of endangered and threatened wildlife.69 FR 56367(9/21/04).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Apache Nitrogen Products, Inc., No. 04-448 TUC DCB (D. Ariz. Sept. 7, 2004). A settling CAA defendant that violated new source performance standards for nitrogen oxides (NOx) emissions from a nitric acid facility in St. David, Arizona, between 1999 and 2002, must pay a $40,000 civil penalty and implement injunctive relief provisions that include operating a new NOx emissions control device and system at the facility and complying with requirements for operation and maintenance planning, plan revising, and training employees with respect to the control device and system.69 FR 58083(9/23/04).
  • United States v. Becton Dickinson AcuteCare Holdings, Inc., No. 04-1888 (CC) (D.P.R. Aug. 30, 2004). Settling CERCLA defendants that owned and/or operated a hazardous waste disposal site in Juncos, Puerto Rico, the Juncos Municipal Landfill, must pay a total of $650,000 plus accrued interest; $150,000 will reimburse past U.S. response costs and $500,000 will serve as a civil penalty for acts and omissions associated with the site that occurred prior to May 22, 2003, and constituted noncompliance with two administrative consent orders.69 FR 57803(9/23/04).
  • United States v. Becton Dickinson AcuteCare Holdings, Inc., No. 04-1888 (CC) (D.P.R. Aug. 30, 2004). Three CERCLA corporate defendants that either arranged for disposal or transported for disposal hazardous substances associated with the Juncos Municipal Landfill in Juncos, Puerto Rico, must pay $3,350,000 plus accrued interest to reimburse U.S. response costs incurred at the site through May 2003.69 FR 57083(9/23/04).
  • United States v. Littleson, Inc., No. 2:04CV00843. (D. Utah Sept. 10, 2004). A settling CERCLA defendant must use approximately $16 million from the Midvale Slag Special Account, plus its own monies, to fund remedial action at the Midvale Slag Superfund site in Midvale, Utah, and must pay EPA 20% of its net development cash flows from land sale activities, up to $2.2 million; two other defendants must implement and apply certain institutional controls to ensure long-term effectiveness of the remedial action; and the United States must pay $2.2 million to the Midvale Slag Special Account (to be used for funding remedial activities) to resolve an action the former defendant filed against the United States seeking contribution for costs of removing site contaminants allegedly attributable to actions of the Metals Reserve Company during World War II.69 FR 57084(9/23/04).
  • United States v. Old Dutch Mustard Co., No. 1:04-CV-346 (D.N.H. Sept. 15, 2004). A settling CWA defendant that failed to apply for an NPDES permit for stormwater discharges to a brook from a vinegar tank farm storage area at the defendant's food processing plant in Greenville, New Hampshire; discharged stormwater from the storage area without a permit; directly discharged certain process waste into the brook without a permit; was responsible for a 1998 oil spill; and failed to prepare an oil spill prevention, control, and countermeasure plan for oil storage facilities at the facility must pay civil penalties of $190,000 and perform injunctive relief that includes constructing berms around the vinegar tank farm and other storage areas; completing improvements to liquid materials and products delivery, conveyance, storage, and loading systems; and revising its oil spill prevention, control, and countermeasure plan.69 FR 57084(9/23/04).
  • United States. v. Sigma-Aldrich Co., No. 04-CV-01186-RWS (E.D. Mo. Sept. 1, 2004). A settling defendant that violated CAA industrial refrigerant, repair, testing, recordkeeping, and reporting regulations must pay a civil penalty of $180,000 within 21 days of decree entry, retrofit or retire six appliances according to a schedule specified in the decree, and implement a refrigerant management plan.69 FR 57085(9/23/04).
  • United States v. Stone Container Co., No. 3:04 CV 647 (E.D. Va. Sept. 9, 2004). A settling CAA defendant that, along with its predecessors, violated CAA regulations at a pulp and paper manufacturing facility in West Point, Virginia, must install air pollution control devices at the facility to control sulfur dioxide and NOx emissions, pay civil penalties of $475,000 to the United States and $457,000 to the commonwealth of Virginia, and comply with monitoring, recordkeeping, and reporting requirements.69 FR 57085(9/23/04).

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

THE CONGRESS

CHAMBER ACTION:

  • H.R. 2663 (National Park System), which would authorize the Secretary of the Interior to study the suitability and feasibility of designating Castle Nugent Farms located on St. Croix, Virgin Islands, as a unit of the National Park System, was passed by the House. 150 Cong. Rec. H7258 (daily ed. Sept. 21, 2004).
  • H.R. 2966 (Right-to-Ride Livestock on Federal Lands Act of 2004), which would preserve the use and access of pack and saddle stock animals on public lands, including wilderness areas, national monuments, and other specifically designated areas, administered by the National Park Service, the BLM, the FWS, or the Forest Service where there is a historical tradition of such use, was passed by the House. 150 Cong. Rec. H7259 (daily ed. Sept. 21, 2004).
  • H.R. 3257 (Western Reserve Heritage Areas Study Act), which would authorize the Secretary of the Interior to conduct a study to determine the suitability and feasibility of establishing the Western Reserve Heritage Area, was passed by the House. 150 Cong. Rec. H7262 (daily ed. Sept. 21, 2004).
  • H.R. 3334 (Riverside-Corona Feeder Authorization Act), which would authorize the Secretary of the Interior to participate in the design and construction of the Riverside-Corona Feeder in cooperation with the Western Municipal Water District of Riverside, was passed by the House. 150 Cong. Rec. H7261 (daily ed. Sept. 21, 2004).
  • H.R. 4045 (Mokelumne River), which would authorize the Secretary of the Interior to prepare a feasibility study with respect to the Mokelumne River, was passed by the House. 150 Cong. Rec. H7396 (daily ed. Sept. 22, 2004).
  • H.R. 4459 (Llagas Reclamation Groundwater Remediation Initiative), which 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, was passed by the House. 150 Cong. Rec. H7257 (daily ed. Sept. 21, 2004).
  • H.R. 4806 (Pine Springs Land Exchange Act), which would provide for a land exchange involving federal lands in the Lincoln National Forest in the state of New Mexico, was passed by the House. 150 Cong. Rec. H7395 (daily ed. Sept. 22, 2004).

COMMITTEE ACTION:

  • S. 1211 (reclamation), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 108-347, 150 Cong. Rec. S9385 (Sept. 20, 2004). The bill would further the purposes of title XVI of the Reclamation Projects Authorization and Adjustment Act of 1992, the Reclamation Wastewater and Groundwater Study and Facilities Act, by directing the Secretary of the Interior to undertake a demonstration program for water reclamation in the Tularosa Basin of New Mexico.
  • S. 1530 (tribal land), was reported by the Committee on Indian Affairs. S. Rep. No. 108-355, 150 Cong. Rec. S9411 (daily ed. Sept. 21, 2004). The bill would provide compensation to the Lower Brule and Crow Creek Sioux Tribes of South Dakota for damage to tribal land caused by Pick-Sloan projects along the Missouri River.

BILLS INTRODUCED:

  • H.R. 5104 (Gilchrest, R-Md.) (Marine Mammal Protection Act), would amend the Marine Mammal Protection Act of 1972 to authorize appropriations for the John H. Prescott Marine Mammal Rescue Assistance Grant Program, and for other purposes. 150 Cong. Rec. H7245 (daily ed. Sept. 17, 2004). The bill was referred to the Committee on Resources.
  • H.R. 5119 (Green, D-Tex.) (hazardous materials), would prohibit the use of remote control locomotives to carry hazardous materials, and for other purposes. 150 Cong. Rec. H7442 (daily ed. Sept. 22, 2004). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 5120 (Dooley, D-Cal.) (National Arboretum), would improve the operation and utilization of the United States National Arboretum in the District of Columbia, and for other purposes. 150 Cong. Rec. H7442 (daily ed. Sept. 22, 2004). The bill was referred to the Committee on Agriculture.
  • H.R. 5128 (Young, R-Alaska) (national parks), would require the Secretary of the Treasury to mint coins in commemoration of the founding of America's National Parks, and for other purposes. 150 Cong. Rec. H7442 (daily ed. Sept. 22, 2004). The bill was referred to the Committee on Financial Services.
  • H. Res. 777 (Meehan, D-Mass.) (energy conservation), would express the sense of the House of Representatives that there should be established a National Weatherization Day to recognize the need for reducing home energy costs, particularly for low-income families, through the use of conservation technologies, and for other purposes. 150 Cong. Rec. H7245 (daily ed. Sept. 17, 2004). The resolution was referred to the Committee on Government Reform.
  • H. Res. 782 (Blumenauer, D-Or.) (sustainable development), would affirm the commitments made by the United States at the World Summit on Sustainable Development in Johannesburg, South Africa, to improve worldwide access to safe drinking water and basic sanitation services. 150 Cong. Rec. H7329 (daily ed. Sept. 21, 2004). The resolution was referred to the Committee on International Relations.
  • H. Res. 786 (Obey, D-Wis.) (appropriations), would provide for consideration of the bill (H.R. 4421) making appropriations for EPA for the fiscal year ending September 30, 2005, and for other purposes. 150 Cong. Rec. H7442 (daily ed. Sept. 22, 2004). The resolution was referred to the Committee on Rules.
  • H. Res. 787 (Obey, D-Wis.) (appropriations), would provide for consideration of the bill (H.R. 4422) making appropriations for the Departments of Agriculture, Education, Health and Human Services, and Transportation for the fiscal year ending September 30, 2005, and for other purposes. 150 Cong. Rec. H7442 (daily ed. Sept. 22, 2004). The resolution was referred to the Committee on Rules.

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:

  • Areportby the World Resources Institute concluded that overfishing and pollution runoff has resulted in an 80% reduction in hard coral cover in the Caribbean region.
  • South Africa's Department of Water Affairs and Forestryissueda list of protected tree species.
  • ResearcherswritinginProceedings of the National Academy of Sciences found that pollen from genetically modified grass traveled up to 21 kilometers from the planting site.
  • The first conference of the Rotterdam Convention on the Prior Informed Consent (PIC) Procedure for Certain Hazardous Chemicals and Pesticides in International Trade member states since the agreement entered into force on February 24 was held in Geneva. The attendeesagreedto add 14 new hazardous chemicals and pesticides to an initial "watch list" of 27 substances. "By increasing the number of hazardous chemicals and pesticides that require prior informed consent before being exported by almost 50%, Governments have given the Rotterdam Convention an enthusiastic vote of confidence," said Assistant Director-General Louise Fresco of the Food and Agriculture Organization of the United Nations which, together with the United Nations Environment Programme (UNEP), provides the Convention’s secretariat. A Chemical Review Committee that assess future proposals to add new chemicals and pesticides to the PIC list was also established.
  • An official with China's State Environmental Protection Administration, describing the state of the nation's environment in dire terms,stressedthat "it's important to make Chinese people not blatantly imitate Western consumer habits so as not to repeat the mistakes by the industrial development of the West over the past 300 years."

CLIMATE CHANGE:

  • Researcherswritingin the journalScience concluded that glaciers in west Antarctica are losing 60% more ice than they accumulate from inland snowfall. Eric Rignot, of the NASA Jet Propulsion Laboratory, said that while "[t]he rates of glacier change remain relatively small at present . . . the potential exists for these glaciers to increase global sea level by more than one metre."
  • Researchers writing inGeophysical Research Letterssaidthat the collapse of the Larsen B ice shelf two years ago has accelerated the flow of glaciers into the nearby Weddell Sea.

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

Note: To order documents or request additional information, please call (800) 433-5120 or (202) 939-3844. Orders may also be sent by e-mail to orders@eli.org or by fax to (202) 939-3817. Please specify the issue of UPDATE about which you are inquiring. In most instances, for the cost of copying and postage, ELR can supply copies of materials cited. Charges for ELR Subscribers are 25 cents/page, $10 minimum; all others, 50 cents/page, $20 minimum. Documents may also be available free or at a nominal charge from the applicable court or agency. Copyright© 2004, Environmental Law Institute, Washington, D.C. All rights reserved.

 

ELR STAFF

 

Leslie Carothers, Publisher
John H. Turner, Editor-in-Chief
Linda L. Johnson, Managing Editor
Rachel Jean-Baptiste, Associate Editor
Caroline Hermann, Assistant Editor
Carolyn Fischer, Editorial Associate
William J. Straub, Desktop Publisher
April King, Editorial Assistant

 

09/27/2004

 LITIGATION

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

NEPA, ESA:

The Ninth Circuit held that the U.S. Navy need not review the probable significant environmental impacts of an accidental explosion of a missile during operations at its submarine base in Bangor, Washington, under NEPA, and that it does not need to consult the National Marine Fisheries Service (NMFS) regarding the possible effects of such an explosion on threatened salmon species inhabiting the waters adjacent to the base under the ESA. Nonprofit groups filed suit against the Navy claiming NEPA and ESA violations with regard to a missile storage upgrade program at the base. Because the Navy has only limited discretion in the program's operation, and within that discretion the risk of a missile explosion is remote, NEPA does not require the Navy to issue an EIS assessing the environmental effects of such an accident at Bangor. Similarly, because of the Navy's limited discretion and the remoteness of a possible accidental missile explosion, the ESA does not require the Navy to consult with the NMFS about whether such an accident would jeopardize the continued existence or adversely affect the critical habitat of threatened salmon species. Ground Zero Center for Nonviolent Action v. United States Department of the Navy, No. 02-36096, 34 ELR 20100 (9th Cir. Sept. 21, 2004) (20 pp.).

CERCLA, INFORMATION REQUEST:

The Sixth Circuit affirmed a lower court summary judgment decision and consequent imposition of approximately $1.9 million in civil penalties against an individual for failing to adequately respond to EPA's request for information under CERCLA §104. The request was valid, the individual was not exempt from compliance with the request, and the request was not barred by res judicata. In addition, the civil penalty was proper, and CERCLA §104 does not violate the Fifth Amendment's Due Process Clause. United States v. Gurley, No. 03-5132, 34 ELR 20099 (6th Cir. Sept. 21, 2004) (8 pp.).

CONSTITUTIONAL LAW, NATIONAL FOREST MANAGEMENT ACT (NFMA), STANDING:

The Tenth Circuit upheld the dismissal of a timber company's claim challenging the U.S. Forest Service's Historical Preservation Plan (HPP) for the Medicine Wheel National Historic Landmark and Vicinity in the Bighorn National Forest. The Forest Service rejected the company's challenge to the HPP, which recognizes explicitly that the cultural and historic importance of the Medicine Wheel is, for many Native Americans, an element of their religious tradition. The company then filed suit in federal court. The company, however, lacked standing to pursue its constitutional claim. The company failed to allege a non-economic injury under the Establishment Clause, and its alleged economic injury of the loss of opportunity for logging is not redressable. And although the company had standing to bring its NFMA claim, the company failed to show that the Forest Service abused its discretion in finding that Amendment 12, which implemented the HPP, was not a "significant" change to the overall forest plan.Wyoming Sawmills Inc. v. United States Forest Service, No. 02-8009, 34 ELR 20098 (10th Cir. Sept. 21, 2004) (22 pp.).

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA), ENVIRONMENTAL IMPACT REPORT (EIR):

A California appellate court upheld a city's decision not to prepare an EIR for the construction of a senior citizens housing complex. A neighborhood group argued that the project would have a significant adverse aesthetic effect on the environment. But based on the project's environmental context, and the fact that the project has undergone an extensive design review process to mitigate its visual impact, there is no environmentally significant aesthetic effect that requires an EIR. Where scenic views or environmentally sensitive areas are concerned, aesthetic considerations are not discounted as environmental impacts merely because they involve subjective judgments. But the legislature, in enacting CEQA, did not intend to require an EIR where the sole environmental impact is the aesthetic merit of a building in a highly developed area.Bowman v. City of Berkeley, No. A103980, 34 ELR 20097 (Cal. 1st App. Ct. Sept. 20, 2004) (32 pp.).

Correction:The Fifth Circuit, inLouisiana Environmental Action Network v. United States Environmental Protection Agency34 ELR 20095, vacated measures approved by EPA as part of Louisiana’s plan to reduce volatile organic compound emissions in the Baton Rouge area. Weekly Update No. 26 stated that the court denied review of a revised attainment demonstration SIP as well as the state's inter-precursor trading provision, which was based on EPA's finding that an approvable attainment demonstration existed for the Baton Rouge area, holding both issues as moot. In fact, EPA had not approved a revised attainment demonstration. EPA previously requested, and the court granted, a voluntary vacatur of the Agency's final rules approving the Baton Rouge attainment demonstration and inter-precuror trading provisions. We apologize for any confusion this may have caused.

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, authorized by the CAA, reclassified certain areas designated as nonattainment for the 8-hour ozone NAAQS.69 FR 56711(9/22/04).
  • EPA informed individuals that produce, import, distribute, sell, apply, or buy methyl bromide of a letter that clarifies information needed to allow the continued production, consumption, and use of methyl bromide for proposed critical uses exempted from the phaseout of methyl bromide allowed under the CAA.69 FR 56756(9/22/04).
  • EPA approved a negative declaration from New Jersey that fulfills EPA's emission guidelines for existing commercial and industrial solid waste incinerator sources.69 FR 57188(9/24/04).
  • EPA approved a revision to a rule submitted by Colorado that redesignates the Lamar, Colorado, and Steamboat Springs, Colorado, areas from nonattainment to attainment for particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers.69 FR 56163(9/20/04).

HAZARDOUS AND SOLID WASTES:

  • EPA granted American Chrome & Chemical LP's petition to exclude from the RCRA lists of hazardous wastes 1,450 cubic yards per year of dewatered sludge generated from the production of chrome oxide green pigments at the company's facility in Corpus Christi, Texas.69 FR 56357(9/21/04).
  • EPA granted final approval to Missouri to operate an underground storage tank program.69 FR 56363(9/21/04).
  • EPA withdrew a proposed rule to grant Teris LLC's petition to exclude from the RCRA lists of hazardous wastes certain incineration ash generated by the company's facility in El Dorado, Arizona, due to adverse comments.69 FR 56382(9/21/04).

PESTICIDES:

  • EPA announced the availability of its risk assessments, preliminary risk reduction options, and related documents for the pesticide chlorsulfuron, and opened a public comment period on these documents in which the public is encouraged to suggest risk management ideas or proposals to address identified risks.69 FR 57281(9/24/04).
  • EPA announced the availability of its tolerance reassessment decision for the pesticide flumetsulam, and opened a public comment period on this document, related risk assessments, and other support documents.69 FR 57284(9/24/04).
  • EPA received and requested public comment on a quarantine exemption request from the Hawaii Department of Agriculture to use the pesticide calcium hydroxide to treat up to 4,000 acres of outdoor plants in nurseries, residential areas, parks, hotels and resorts, forest habitats, and natural areas to control Coqui and Greenhouse frogs.69 FR 57288(9/24/04).
  • EPA announced the availability of its tolerance reassessment decision for desmedipham, ensuring that it met current health and food safety standards, and opened a public comment period on this document, related risk assessments, and other support documents.69 FR 56760(9/22/04).

PRESIDENTIAL PROCLAMATION:

  • The President issued Presidential Proclamation 7818 concerning the 2004 National Farm Safety and Health Week, noting that the week is a time to "reflect on the contributions of America's farm and ranch families and underscore our commitment . . . to protecting our farm and ranchland" and highlighting the importance of maintaining safety and health in farming operations, where operators engage in risks such as operating farm machinery, applying agricultural chemicals and fertilizers, handling large and unpredictable livestock, and working in places where dust and toxins contaminate the air.69 FR 56925(9/23/04).

WATER QUALITY:

  • EPA determined that adequate facilities for the safe and sanitary treatment of sewage from all vessels are available at the 11 disposal facilities operating in portions of the Connecticut water.69 FR 57289(9/24/04).
  • EPA, Region 9 issued a final general NPDES permit establishing effluent limitations, prohibitions, and other conditions for discharges from offshore oil and gas exploration, development, and production facilities located in federal waters off the coast of Southern California.69 FR 56764(9/22/04).
  • EPA announced the availability of information relevant to determining whether alternate regulatory requirements are appropriate for facilities under the CWA that handle oil below a certain threshold amount.69 FR 56184(9/20/04).
  • EPA announced that there is relevant information that determines whether alternate regulatory requirements for facilities with oil-filled and process equipment under the CWA would be appropriate.69 FR 56185(9/20/04).

WILDLIFE:

  • FWS announced the availability of the final recovery plan to delist, under the ESA, the Puerto Rican demon, which is the second largest species found Puerto Rico, living from 18-1,183 ft above sea level in large granite caves or streams.69 FR 57358(9/24/04)
  • FWS issued late-season frameworks from which states may select season dates, limits, and other options for the 2004-2005 migratory bird hunting season; the earliest commencement date for late-season hunting is September 25, 2004.69 FR 57139(9/23/04).
  • FWS removed the Tinian monarch, a forest bird endemic to the island of Tinian in the Mariana archipelago that was listed as endangered in 1970 and was "downlisted" to threatened status in 1987, from the ESA list of endangered and threatened wildlife.69 FR 56367(9/21/04).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Apache Nitrogen Products, Inc., No. 04-448 TUC DCB (D. Ariz. Sept. 7, 2004). A settling CAA defendant that violated new source performance standards for nitrogen oxides (NOx) emissions from a nitric acid facility in St. David, Arizona, between 1999 and 2002, must pay a $40,000 civil penalty and implement injunctive relief provisions that include operating a new NOx emissions control device and system at the facility and complying with requirements for operation and maintenance planning, plan revising, and training employees with respect to the control device and system.69 FR 58083(9/23/04).
  • United States v. Becton Dickinson AcuteCare Holdings, Inc., No. 04-1888 (CC) (D.P.R. Aug. 30, 2004). Settling CERCLA defendants that owned and/or operated a hazardous waste disposal site in Juncos, Puerto Rico, the Juncos Municipal Landfill, must pay a total of $650,000 plus accrued interest; $150,000 will reimburse past U.S. response costs and $500,000 will serve as a civil penalty for acts and omissions associated with the site that occurred prior to May 22, 2003, and constituted noncompliance with two administrative consent orders.69 FR 57803(9/23/04).
  • United States v. Becton Dickinson AcuteCare Holdings, Inc., No. 04-1888 (CC) (D.P.R. Aug. 30, 2004). Three CERCLA corporate defendants that either arranged for disposal or transported for disposal hazardous substances associated with the Juncos Municipal Landfill in Juncos, Puerto Rico, must pay $3,350,000 plus accrued interest to reimburse U.S. response costs incurred at the site through May 2003.69 FR 57083(9/23/04).
  • United States v. Littleson, Inc., No. 2:04CV00843. (D. Utah Sept. 10, 2004). A settling CERCLA defendant must use approximately $16 million from the Midvale Slag Special Account, plus its own monies, to fund remedial action at the Midvale Slag Superfund site in Midvale, Utah, and must pay EPA 20% of its net development cash flows from land sale activities, up to $2.2 million; two other defendants must implement and apply certain institutional controls to ensure long-term effectiveness of the remedial action; and the United States must pay $2.2 million to the Midvale Slag Special Account (to be used for funding remedial activities) to resolve an action the former defendant filed against the United States seeking contribution for costs of removing site contaminants allegedly attributable to actions of the Metals Reserve Company during World War II.69 FR 57084(9/23/04).
  • United States v. Old Dutch Mustard Co., No. 1:04-CV-346 (D.N.H. Sept. 15, 2004). A settling CWA defendant that failed to apply for an NPDES permit for stormwater discharges to a brook from a vinegar tank farm storage area at the defendant's food processing plant in Greenville, New Hampshire; discharged stormwater from the storage area without a permit; directly discharged certain process waste into the brook without a permit; was responsible for a 1998 oil spill; and failed to prepare an oil spill prevention, control, and countermeasure plan for oil storage facilities at the facility must pay civil penalties of $190,000 and perform injunctive relief that includes constructing berms around the vinegar tank farm and other storage areas; completing improvements to liquid materials and products delivery, conveyance, storage, and loading systems; and revising its oil spill prevention, control, and countermeasure plan.69 FR 57084(9/23/04).
  • United States. v. Sigma-Aldrich Co., No. 04-CV-01186-RWS (E.D. Mo. Sept. 1, 2004). A settling defendant that violated CAA industrial refrigerant, repair, testing, recordkeeping, and reporting regulations must pay a civil penalty of $180,000 within 21 days of decree entry, retrofit or retire six appliances according to a schedule specified in the decree, and implement a refrigerant management plan.69 FR 57085(9/23/04).
  • United States v. Stone Container Co., No. 3:04 CV 647 (E.D. Va. Sept. 9, 2004). A settling CAA defendant that, along with its predecessors, violated CAA regulations at a pulp and paper manufacturing facility in West Point, Virginia, must install air pollution control devices at the facility to control sulfur dioxide and NOx emissions, pay civil penalties of $475,000 to the United States and $457,000 to the commonwealth of Virginia, and comply with monitoring, recordkeeping, and reporting requirements.69 FR 57085(9/23/04).

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

THE CONGRESS

CHAMBER ACTION:

  • H.R. 2663 (National Park System), which would authorize the Secretary of the Interior to study the suitability and feasibility of designating Castle Nugent Farms located on St. Croix, Virgin Islands, as a unit of the National Park System, was passed by the House. 150 Cong. Rec. H7258 (daily ed. Sept. 21, 2004).
  • H.R. 2966 (Right-to-Ride Livestock on Federal Lands Act of 2004), which would preserve the use and access of pack and saddle stock animals on public lands, including wilderness areas, national monuments, and other specifically designated areas, administered by the National Park Service, the BLM, the FWS, or the Forest Service where there is a historical tradition of such use, was passed by the House. 150 Cong. Rec. H7259 (daily ed. Sept. 21, 2004).
  • H.R. 3257 (Western Reserve Heritage Areas Study Act), which would authorize the Secretary of the Interior to conduct a study to determine the suitability and feasibility of establishing the Western Reserve Heritage Area, was passed by the House. 150 Cong. Rec. H7262 (daily ed. Sept. 21, 2004).
  • H.R. 3334 (Riverside-Corona Feeder Authorization Act), which would authorize the Secretary of the Interior to participate in the design and construction of the Riverside-Corona Feeder in cooperation with the Western Municipal Water District of Riverside, was passed by the House. 150 Cong. Rec. H7261 (daily ed. Sept. 21, 2004).
  • H.R. 4045 (Mokelumne River), which would authorize the Secretary of the Interior to prepare a feasibility study with respect to the Mokelumne River, was passed by the House. 150 Cong. Rec. H7396 (daily ed. Sept. 22, 2004).
  • H.R. 4459 (Llagas Reclamation Groundwater Remediation Initiative), which 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, was passed by the House. 150 Cong. Rec. H7257 (daily ed. Sept. 21, 2004).
  • H.R. 4806 (Pine Springs Land Exchange Act), which would provide for a land exchange involving federal lands in the Lincoln National Forest in the state of New Mexico, was passed by the House. 150 Cong. Rec. H7395 (daily ed. Sept. 22, 2004).

COMMITTEE ACTION:

  • S. 1211 (reclamation), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 108-347, 150 Cong. Rec. S9385 (Sept. 20, 2004). The bill would further the purposes of title XVI of the Reclamation Projects Authorization and Adjustment Act of 1992, the Reclamation Wastewater and Groundwater Study and Facilities Act, by directing the Secretary of the Interior to undertake a demonstration program for water reclamation in the Tularosa Basin of New Mexico.
  • S. 1530 (tribal land), was reported by the Committee on Indian Affairs. S. Rep. No. 108-355, 150 Cong. Rec. S9411 (daily ed. Sept. 21, 2004). The bill would provide compensation to the Lower Brule and Crow Creek Sioux Tribes of South Dakota for damage to tribal land caused by Pick-Sloan projects along the Missouri River.

BILLS INTRODUCED:

  • H.R. 5104 (Gilchrest, R-Md.) (Marine Mammal Protection Act), would amend the Marine Mammal Protection Act of 1972 to authorize appropriations for the John H. Prescott Marine Mammal Rescue Assistance Grant Program, and for other purposes. 150 Cong. Rec. H7245 (daily ed. Sept. 17, 2004). The bill was referred to the Committee on Resources.
  • H.R. 5119 (Green, D-Tex.) (hazardous materials), would prohibit the use of remote control locomotives to carry hazardous materials, and for other purposes. 150 Cong. Rec. H7442 (daily ed. Sept. 22, 2004). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 5120 (Dooley, D-Cal.) (National Arboretum), would improve the operation and utilization of the United States National Arboretum in the District of Columbia, and for other purposes. 150 Cong. Rec. H7442 (daily ed. Sept. 22, 2004). The bill was referred to the Committee on Agriculture.
  • H.R. 5128 (Young, R-Alaska) (national parks), would require the Secretary of the Treasury to mint coins in commemoration of the founding of America's National Parks, and for other purposes. 150 Cong. Rec. H7442 (daily ed. Sept. 22, 2004). The bill was referred to the Committee on Financial Services.
  • H. Res. 777 (Meehan, D-Mass.) (energy conservation), would express the sense of the House of Representatives that there should be established a National Weatherization Day to recognize the need for reducing home energy costs, particularly for low-income families, through the use of conservation technologies, and for other purposes. 150 Cong. Rec. H7245 (daily ed. Sept. 17, 2004). The resolution was referred to the Committee on Government Reform.
  • H. Res. 782 (Blumenauer, D-Or.) (sustainable development), would affirm the commitments made by the United States at the World Summit on Sustainable Development in Johannesburg, South Africa, to improve worldwide access to safe drinking water and basic sanitation services. 150 Cong. Rec. H7329 (daily ed. Sept. 21, 2004). The resolution was referred to the Committee on International Relations.
  • H. Res. 786 (Obey, D-Wis.) (appropriations), would provide for consideration of the bill (H.R. 4421) making appropriations for EPA for the fiscal year ending September 30, 2005, and for other purposes. 150 Cong. Rec. H7442 (daily ed. Sept. 22, 2004). The resolution was referred to the Committee on Rules.
  • H. Res. 787 (Obey, D-Wis.) (appropriations), would provide for consideration of the bill (H.R. 4422) making appropriations for the Departments of Agriculture, Education, Health and Human Services, and Transportation for the fiscal year ending September 30, 2005, and for other purposes. 150 Cong. Rec. H7442 (daily ed. Sept. 22, 2004). The resolution was referred to the Committee on Rules.

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:

  • Areportby the World Resources Institute concluded that overfishing and pollution runoff has resulted in an 80% reduction in hard coral cover in the Caribbean region.
  • South Africa's Department of Water Affairs and Forestryissueda list of protected tree species.
  • ResearcherswritinginProceedings of the National Academy of Sciences found that pollen from genetically modified grass traveled up to 21 kilometers from the planting site.
  • The first conference of the Rotterdam Convention on the Prior Informed Consent (PIC) Procedure for Certain Hazardous Chemicals and Pesticides in International Trade member states since the agreement entered into force on February 24 was held in Geneva. The attendeesagreedto add 14 new hazardous chemicals and pesticides to an initial "watch list" of 27 substances. "By increasing the number of hazardous chemicals and pesticides that require prior informed consent before being exported by almost 50%, Governments have given the Rotterdam Convention an enthusiastic vote of confidence," said Assistant Director-General Louise Fresco of the Food and Agriculture Organization of the United Nations which, together with the United Nations Environment Programme (UNEP), provides the Convention’s secretariat. A Chemical Review Committee that assess future proposals to add new chemicals and pesticides to the PIC list was also established.
  • An official with China's State Environmental Protection Administration, describing the state of the nation's environment in dire terms,stressedthat "it's important to make Chinese people not blatantly imitate Western consumer habits so as not to repeat the mistakes by the industrial development of the West over the past 300 years."

CLIMATE CHANGE:

  • Researcherswritingin the journalScience concluded that glaciers in west Antarctica are losing 60% more ice than they accumulate from inland snowfall. Eric Rignot, of the NASA Jet Propulsion Laboratory, said that while "[t]he rates of glacier change remain relatively small at present . . . the potential exists for these glaciers to increase global sea level by more than one metre."
  • Researchers writing inGeophysical Research Letterssaidthat the collapse of the Larsen B ice shelf two years ago has accelerated the flow of glaciers into the nearby Weddell Sea.

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

Note: To order documents or request additional information, please call (800) 433-5120 or (202) 939-3844. Orders may also be sent by e-mail to orders@eli.org or by fax to (202) 939-3817. Please specify the issue of UPDATE about which you are inquiring. In most instances, for the cost of copying and postage, ELR can supply copies of materials cited. Charges for ELR Subscribers are 25 cents/page, $10 minimum; all others, 50 cents/page, $20 minimum. Documents may also be available free or at a nominal charge from the applicable court or agency. Copyright© 2004, Environmental Law Institute, Washington, D.C. All rights reserved.

ELR STAFF

Leslie Carothers, Publisher
John H. Turner, Editor-in-Chief
Linda L. Johnson, Managing Editor
Rachel Jean-Baptiste, Associate Editor
Caroline Hermann, Assistant Editor
Carolyn Fischer, Editorial Associate
William J. Straub, Desktop Publisher
April King, Editorial Assistant