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Weekly Update Volume 34, Issue 3

01/26/2004

LITIGATION

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

CAA, PREVENTION OF SIGNIFICANT DETERIORATION (PSD), BEST AVAILABLE CONTROL TECHNOLOGY (BACT):

The U.S. Supreme Court held that the CAA authorizes EPA to stop construction of a major pollutant emitting facility permitted by a state authority when EPA finds that the authority’s BACT determination is unreasonable. CAA §§113(a)(5) and 167 empower EPA to check a state agency’s unreasonably lax BACT designation. Congress intended the PSD program to prevent significant deterioration of air quality in clean air areas, and without a federal surveillance role that extends to BACT determinations, this goal is unlikely to be realized. The state authority's views to the contrary do not persuade the Court to reject EPA's longstanding, consistently maintained interpretation of the Act. The authority argued that EPA’s enforcement role is restricted to assuring that the permit contain a BACT limitation because the CAA entrusts state authorities with initial responsibility to make BACT determinations. According state authorities initial responsibility, however, does not signify that there can be no unreasonable state agency BACT determinations. Congress vested EPA with explicit and sweeping authority to enforce CAA "requirements" relating to the construction and modification of sources under the PSD program, including BACT. Having expressly endorsed an expansive surveillance role for EPA in two independent CAA provisions, Congress would not have implicitly precluded EPA from verifying a state authority’s substantive compliance with the BACT requirement. Nor would Congress have limited EPA to determining whether the state permitting authority had uttered the key words "BACT." The fact that CAA §165(a)(8) expressly requires EPA approval of a state's BACT determination in a limited category of cases does not mean EPA lacks supervisory authority in all other cases. CAA §§113(a)(5) and 167 do not require EPA approval of all state BACT determinations. The provisions simply authorize EPA to act in the unusual case in which a state permitting authority has determined BACT arbitrarily. Here, EPA validly issued the stop orders because the state's BACT designation were not reasonable in light of statutory guides. Ginsburg, J., delivered the opinion of the Court, in which Stevens, O'Connor, Souter, and Breyer, JJ., joined. Kennedy, J., filed a dissenting opinion, in which Rehnquist, C.J., and Scalia and Thomas, JJ., joined.Alaska Department of Environmental Conservation v. Environmental Protection Agency, No. 02-658 (U.S. Jan. 21, 2004) (61 pp.).

CERCLA, CONTRIBUTION ACTIONS, MOTIONS TO REOPEN:

The Sixth Circuit held that a district court properly reviewed, and rejected as time barred, a request to reopen its decision relieving a PRP of investigative and remediation costs under Rule 60(b)(2) of the Federal Rules of Civil Procedure. After the district court issued its zero-allocation order, plaintiff discovered new evidence of increased environmental contamination, prompting it to file the motion to reopen. The district court, construing the filing as a motion under Rule 60(b)(2), denied the request as time barred. Nothing in CERCLA compels the conclusion that the equitable underpinnings of an allocation decision exempt it from the requirement that motions to alter judgments be brought under Rule 60(b). In fact, CERCLA §113(f)(1) clearly states that all claims "shall be brought in accordance with . . . the Federal Rules of Civil Procedure." The court rejected plaintiff's argument that because a district court relies upon equitable factors to make an allocation decision, such a decision is forever subject to revision should there be any alteration in the equities underlying the allocation order. The equitable basis of CERCLA allocation decisions does not deprive all allocation orders of their finality. Other equitable decisions, such as an order mandating specific performance in a contract dispute, are not automatically subject to future revision. In allocating no costs of future remediation to the PRP, the district court mentioned nothing about a provisional order or potential alterations in the future. Nor did the language of the district court's order leave room to infer that the allocation decision was provisional or susceptible to change based upon future events. The court also held that the district court did not commit clear error or abuse its discretion in allocating to a second PRP only a very small portion of plaintiff's investigation costs.Kalamazoo River Study Group v. Rockwell International Corp., Nos. 01-2453, 02-2192 (6th Cir. Jan. 14, 2004) (11 pp.).

NEPA, EIS, ALTERNATIVES:

The Tenth Circuit held the U.S. Air Force's proposal to permit the German Air Force to station 30 additional fighter aircraft at the Holloman Air Force Base in New Mexico for training purposes did not violate NEPA. The proposal would expand the German Air Force presence at Holloman pursuant to a 1994 agreement between the U.S. Air Force and the German Defense Ministry. As such, it was not unreasonable for the U.S. Air Force to confine its consideration of alternatives to those available at Holloman. Likewise, the EIS' treatment of the land valuation issue did not constitute a violation of NEPA despite the EIS' failure to cite by name or discuss in detail the documentation it relied on for its conclusion that valuation was impossible. It is clear from the record that the U.S. Air Force did not consider decreased land values a reasonably foreseeable significant adverse impact; rather, it concluded that no measurable decrease in land values was likely to occur. Similarly, the EIS' discussion on noise levels, livestock, and aircraft accidents was adequate.Lee v. United States Air Force, No. 02-2306 (10th Cir. Jan. 12, 2004) (10 pp.).

CAA, HAZARDOUS AIR POLLUTANTS (HAPs), COPPER SMELTERS:

    The D.C. Circuit rejected a challenge to EPA's promulgation of regulations governing the emission of HAPs from primary copper smelters. After surveying the technology used at the various locations, EPA determined that copper smelters used particulate matter (PM) control devices to reduce HAP emissions. EPA accordingly set standards for HAP emissions in terms of PM rather than setting individual limits for each HAP. Petitioners argued that EPA violated CAA §112(d)(3) by setting surrogate emission standards to confirm the proper use of a chosen technology instead of basing standards on what the best sources achieve with respect to HAP emissions control. The standards, however, accurately reflect the control achieved by the best-performing sources. EPA established emission standards for the various copper smelting processes based upon the actual PM emissions of the relevant units from performance tests or based upon established regulatory limits. In addition, the use of PM as a surrogate was reasonable, even in light of the potential variability of impurities in copper ore. Further, EPA adequately considered alternatives to the PM standard, and EPA’s opacity-based standard for fugitive HAP emissions is both reasonable and lawful. The court also rejected petitioner's claims that EPA unlawfully refused to impose beyond-the-floor standards, that it failed to take into account non-air quality health and environmental impacts, that its monitoring requirement was inadequate, and that the final rule violated the ESA's interagency consultation requirements.Sierra Club v. Environmental Protection Agency, No. 02-1253 (D.C. Cir. Jan. 13, 2004) (25 pp.).

WATER RIGHTS, RECLAMATION ACT, WATER ALLOCATION:

    The Ninth Circuit reversed and remanded a district court decision affirming a ruling by the court-appointed water master to reclassify farmland located in the Newlands Reclamation Project in Nevada from "bottom land" to "bench land" for water allocation purposes. The water master is not required to follow the Federal Rules of Evidence or Civil Procedure when conducting reclassification proceedings, nor is the master required to hold an evidentiary hearing prior to granting a petition. Nevertheless, the water master applied an incorrect standard in granting the petition to reclassify the farmland. The water master may approve a reclassification petition only when there has been a reasonably significant loss in crop yield.United States v. Clifford Matley Family Trust, Nos. 01-15778, 15813 (9th Cir. Jan. 20, 2004) (24 pp.).

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

THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register (FR).

AGRICULTURE:

  • USDA's Natural Resources Conservation Service announced that it will hold public forums in 10 states in order to allow individuals to offer ideas and comments on the proposed implementation rule for the Conservation Security Program.69 FR 2083(1/14/04).
  • USDA issued a declaration of extraordinary emergency, prompted by the detection of bovine spongiform encephalopathy (BSE) in the United States and the Department's assessment that BSE is a threat to U.S. livestock, the national economy, and interstate and foreign commerce, and that the United States may be unable to adequately quarantine or dispose of animals potentially infected by or exposed to BSE.69 FR 1694(1/12/04).

AIR:

  • EPA promulgated specifications, quality assurance requirements, and test procedures for particulate matter continuous emission monitoring systems at stationary sources; the standards are intended to help ensure that these monitoring systems are installed and operating properly and produce good quality monitoring data.69 FR 1785(1/12/04).
  • EPA revised exhaust emission standards for currently regulated highway motorcycles, adopted exhaust emission standards for previously unregulated motorcycles of less than 50 cubic centimeters in displacement, and adopted new permeation evaporative emission standards for all classes of highway motorcycles; these regulatory changes will be fully implemented by 2030.69 FR 2397(1/15/04).
  • EPA amended requirements associated with emission standards (also called Phase 2 standards) for spark ignition non-road handheld engines at or below 19 kilowatts in order to increase compliance flexibility available to engine manufacturers in the Phase 2 averaging, banking, and trading program.69 FR 1823(1/12/04).
  • EPA removed a direct final rule that approved Puerto Rico's state plan for meeting CAA §§111(d) and 129 requirements for commercial and industrial solid waste incineration units; the Agency received adverse comment.69 FR 2304(1/15/04).

DRINKING WATER:

  • EPA tentatively approved and requested comment on revisions to West Virginia's public water system supervision program, after determining that the state's adoption of a radionuclides rule establishing a new maximum contaminant level for uranium and revising associated monitoring requirements makes the state's public water system regulations no less stringent than corresponding federal national primary drinking water regulations and requirements of SDWA §1413.69 FR 2354(1/15/04).

HAZARDOUS AND SOLID WASTES:

  • EPA entered into a proposed administrative settlement under CERCLA with 42 settling waste generators concerning the site of the former Liquid Dynamics liquid hazardous waste treatment facility in Chicago, Illinois; the settling parties must implement a removal action to address residual soil contamination at the site and pay $36,400 to fund EPA supervision costs, and EPA must waive past response costs associated with the site.69 FR 2596(1/16/04).
  • EPA entered into a proposed agreement and covenant not to sue under CERCLA concerning a developer's plans to purchase, clean up, and develop for use as an office supply distribution center a 10.72 acre lot in Brockton, Massachusetts, where EPA removed semi-volatile organic compounds, asbestos, and polychlorinated biphenyls; EPA will grant a covenant not to sue with respect to existing site contamination in exchange for the developer's payment of $25,000 to EPA and agreement to provide EPA irrevocable right of access to the site.69 FR 2595(1/16/04).
  • EPA entered into a proposed administrative settlement under CERCLA concerning the Service Waste Inc. Superfund removal site in Mansfield, Texas; the settlement requires the settling parties to pay past response costs of $181,926.84, plus interest, in three installments to the EPA Hazardous Substances Superfund.69 FR 1979(1/13/04).
  • EPA entered into a proposed administrative agreement under CERCLA concerning the Brunswick Wood Preserving Superfund site in Brunswick, Georgia, with Kerr-McGee Chemical L.L.C.69 FR 3144(1/22/04).
  • EPA entered in a proposed administrative agreement under CERCLA with two settling parties for recovery of past response costs associated with the Morgan Materials Inc. Superfund site in Buffalo, New York, which requires the settling parties to pay $425,000 to the EPA Hazardous Substances Superfund.69 FR 3144(1/22/04).
  • EPA authorized changes to Pennsylvania's hazardous waste program under RCRA; the authorization approves provisions of the state's hazardous waste program that correspond to federal regulations already in effect.69 FR 2674(1/20/04).

SMCRA PROGRAM:

  • OSM approved a proposed amendment to North Dakota's regulatory program under SMCRA that is intended to allow the state to accept letters of credit as the monetary pledge for collateral bonds, permit phased bonding over a bond area, clarify provisions on blasting records kept by mining companies, and standardize terminology in revegetation success standards for bond release.69 FR 2663(1/20/04).
  • OSM announced the opportunity for public comment on a proposed amendment to the Ohio regulatory program under SMCRA that would revise state regulations to reflect regulations already promulgated by EPA concerning coal remining operations.69 FR 2689(1/20/04).

TOXIC SUBSTANCES:

  • The TSCA Interagency Testing Committee submitted itsFifty-Third Report to the Administrator of the Environmental Protection Agencyto EPA on December 2, 2003.69 FR 2467(1/15/04).
  • EPA announced the availability of and requested comment on "Questions and Answers for the New Chemicals Program (Q&A)," a document intended to explain and clarify TSCA §5 and associated implementation regulations.69 FR 2352(1/15/04).
  • EPA revoked significant new use rules promulgated under TSCA §5(a)(2) for four substances, including 3-hydroxy-1 and 1-dimethylbutyl derivative, based on new data that suggests that activities not described in the TSCA §5(e) consent orders or premanufacture notices for these substances do not result in significant changes in human or environmental exposure.69 FR 1924(1/13/04).
  • EPA announced the availability of a human health risk reassessment and related documents for the pesticide oryzalin and announced the start of the 60-day public comment period on the risk reassessment.69 FR 3342(1/23/04).

WATER QUALITY:

  • EPA Region Four proposed to reissue the NPDES general permit for the eastern portion of the Outer Continental Shelf of the Gulf of Mexico for discharges in the offshore subcategory of the oil and gas extraction point source category, and gave notice to Alabama, Florida, and Mississippi that the proposed permitting requires consistency reviews with the states' approved coastal management programs.69 FR 1743(1/12/04).
  • EPA announced the availability of and requested scientific views on a revised draft human health/ambient water quality criteria document for chloroform; the revised criteria were derived according to procedures specified in EPA'sMethodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health.69 FR 2712(1/20/04).
  • The Coast Guard gave notice that the congressionally authorized 1997 enforcement policy regulating dry cargo residue discharges in the Great Lakes expires September 30, 2004, and that if new regulations are not in place by this date, the current statute prohibiting these discharges will become effective on October 1, 2004.69 FR 1994(1/13/04).
  • The Coast Guard extended by three years a suspension of the requirement that all owners or operators of vessels carrying Groups I through V petroleum oil as primary cargo identify in their response plans a company with firefighting capability that can be deployed to the port nearest the vessel's operating area within 24 hours; the suspension originally was effective February 12, 2001, and would have expired on February 12, 2004 (63 FR 7069), but the Guard extended it in order to complete a rulemaking on salvage and marine firefighting regulations.69 FR 3236(1/23/04).
  • DOJ entered into a proposed settlement agreement under the Oil Pollution Act concerning claims associated with injuries to natural resources resulting from a December 30, 2000, oil spill that released approximately 6,100 gallons of fuel oil into the East Walker River after an Advanced Fuel tank truck overturned near Bridgeport, California; Advanced Fuel must pay $350,000 to the Natural Resource Damage Assessment and Restoration Fund for use by the five trustee agencies in rehabilitating the affected resources and must reimburse the California Department of Fish and Game $68,000 in past response costs.69 FR 3390(1/23/04).

WILDLIFE:

  • FWS determined that the Rota bridled white-eye, a bird endemic to the island of Rota in the Commonwealth of the Northern Mariana Islands whose total population numbers have declined by more than 89% since 1982, is endangered under the ESA.69 FR 3022(1/22/04).
  • FWS proposed to designate critical habitat for the California tiger salamander in California's Santa Barbara County; this action would label approximately 13,920 acres as habitat essential to the conservation of the endangered amphibian and would make the designated area potentially subject to special management considerations or protection.69 FR 3064(1/22/04).
  • FWS withdrew a proposed rule (67 FR 46441) for listing slickspot peppergrass as endangered under the ESA because the Service has found a lack of strong evidence of a negative population trend for the species and has determined that current or planned conservation efforts will be effective such that the risk to the species will be reduced below the level specified by the statutory definitions of endangered or threatened.69 FR 3094(1/22/04).
  • FWS announced its finding upon reexamination of regulatory mechanisms protecting the Florida black bear and determined that existing regulatory mechanisms are adequate and that listing the black bear under the ESA remains inappropriate.69 FR 2100(1/14/04).
  • FWS approved five permits for takings of endangered species after finding that the permits would not disadvantage the species and would be consistent with the purposes and policies of the ESA and/or the Marine Mammal Protection Act.69 FR 3386(1/23/04).
  • FWS granted a permit to Struthers Ranch Development LLC of El Paso County, Colorado, authorizing the incidental take of the endangered Preble's meadow jumping mouse after determining that the permit would not disadvantage the threatened species.69 FR 1998(1/13/04).
  • FWS proposed annual spring/summer migratory bird subsistence harvest regulations in Alaska for 2004, prescribing frameworks for dates when bird harvesting may occur, species that can be taken, and methods and means excluded from use.69 FR 1686(1/12/04).
  • FWS gave notices that as of March 26, 2003, responsibility for management of the submerged lands and waters associated with the Pacific Ocean's Midway Atoll was transferred from the DOI's Office of Insular Affairs to the FWS.69 FR 1756(1/12/04).
  • FWS announced the availability of a draft recovery plan for Behren's Silverspot Butterfly, a species that occupies early successional coastal terrace prairie habitat containing the early blue violet and is believed to exist at only one location in California.69 FR 2725(1/20/04).
  • The Coast Guard announced that on May 22, 2003, it entered into a memorandum of understanding with the FWS to promote the conservation of migratory bird populations in the context of the Guard's Rescue 21 Program, a search and rescue communication system that involves antenna tower sites.69 FR 1996(1/13/04).
  • NOAA announced the availability ofProgress Report: The Coral Reef Conservation Grant Program, a report on the program's effectiveness and achievements required by the Coral Reef Conservation Act of 2000.69 FR 2903(1/21/04).

DOJ NOTICES OF SETTLEMENT:

  • In re National Steel Corp., No. 02-08713 (Bankr. Ct. N.D. Ill. Oct. 17, 2003). A settling defendant who violated the CAA, CERCLA, the CWA, EPCRA, RCRA, and TSCA at three integrated steel mills in Granite City, Illinois, Ecorse, Michigan, and Portage, Indiana, must pay a general unsecured claim of $2.1 million in civil penalties, subject to the defendant's Chapter 11 bankruptcy proceedings (In re: National Steel Corporation, No. 02-08699 (Bankr. Ct. N.D. Ill. Mar. 6, 2002)), and must pay two general unsecured claims of $115,565 and $5,200 for reimbursement of past EPA CERCLA response costs incurred at the Abby Street/Hickory Woods Subdivision Superfund site in Buffalo, New York, and the Rasmussen Dump site in Green Oak Township, Michigan, payment of which also is subject to the defendant's bankruptcy proceedings.69 FR 2362(1/15/04).
  • United States v. Walnutdale Farms, No. 4:00-CV-193 (W.D. Mich. Dec. 22, 2003). Settling defendants who violated the CWA by discharging wastewater from a confined animal feeding operation (CAFO) without an NPDES permit and failed to comply with an EPA administrative order must implement specific remedial measures to assure compliance with CWA requirements and applicable regulations, including the design, construction, and operation of a stormwater retention pond to capture and store all process wastewater generated by the CAFO facility, the submission of a comprehensive nutrient waste management plan to EPA and the Michigan Department of Environmental Quality, implementation of measures associated with the operation and maintenance of waste storage devices and land application of farm wastes, and the payment of $100,000 plus interest over a four-year period, half to the United States in civil penalties and half to the Sierra Club as partial reimbursement of litigation costs.69 FR 2362(1/15/04).
  • United States v. Clatsop County, No. CV-04-42-HU (D. Or. Jan. 14, 2004). A settling CWA defendant who discharged pollutants into U.S. waters without a permit must conduct appropriate restoration and mitigation, pay a civil penalty, and perform supplemental environmental projects.69 FR 3390(1/23/04).

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

THE CONGRESS

BILLS INTRODUCED:

  • S. 2007 (Durbin, D-Ill.)(bovine spongiform encephalopathy), would provide better protection against bovine spongiform encephalopathy and other prion diseases. 150 Cong. Rec. S52 (daily ed. Jan. 20, 2004). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 2008 (Specter, R-Pa.)(Animal Health Protection Act), would amend the Animal Health Protection Act to direct the Secretary of Agriculture to establish an electronic nationwide livestock identification system. 150 Cong. Rec. S52 (daily ed. Jan. 20, 2004). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 2009 (Smith, R-Or.)(ESA), would amend the ESA to require the Secretary of the Interior to give greater weight to scientific or commercial data that is empirical or has been field-tested or peer-reviewed. 150 Cong. Rec. S52 (daily ed. Jan. 20, 2004). The bill was referred to the Committee on Environment and Public Works.
  • S. 2014 (Cantwell, D-Wash.)(Federal Power Act), would amend the Federal Power Act to establish reliability standards. 150 Cong. Rec. S108 (daily ed. Jan. 21, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2015 (Cantwell, D-Wash.)(energy), would prohibit energy market manipulation. 150 Cong. Rec. S108 (daily ed. Jan. 21, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2018 (Bunning, R-Ky.)(National Trails System), would amend the National Trails System Act to extend the Lewis and Clark National Historic Trail to include additional sites associated with the preparation or return phase of the expedition. 150 Cong. Rec. S184 (daily ed. Jan. 22, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 3705 (Miller, D-Cal.)(bovine spongiform encephalopathy), would amend the Federal Meat Inspection Act to enhance the safety of beef and beef food products originating in the United States by requiring the testing of cattle for bovine spongiform encephalopathy (commonly known as mad cow disease) at the time of slaughter. 150 Cong. Rec. H35 (daily ed. Jan. 20, 2004), and for other purposes; to the Committee on Agriculture.
  • H.R. 3706 (Miller, D-Cal.)(historic site), would adjust the boundary of the John Muir National Historic Site. 150 Cong. Rec. H35 (daily ed. Jan. 20, 2004). The bill was referred to the Committee on Resources.
  • H.R. 3714 (Delauro, D-Conn.)(bovine spongiform encephalopathy), would provide better protection against bovine spongiform encephalopathy and other prion diseases. 150 Cong. Rec. H88 (daily ed. Jan. 21, 2004). The bill was referred to the Committees on Agriculture, Energy and Commerce, and Ways and Means.
  • H.R. 3724 (Shays, R-Conn.)(energy conservation), would amend §220 of the National Housing Act to make a technical correction to restore allowable increases in the maximum mortgage limits for FHA-insured mortgages for multifamily housing projects to cover increased costs of installing a solar energy system or residential energy conservation measures. 150 Cong. Rec. H89 (daily ed. Jan. 21, 2004). The bill was referred to the Committee on Financial Services.

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:

EUROPE:

CLIMATE CHANGE:

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

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